Walsh v. Adams Express Co. , 1900 Pa. Super. LEXIS 342 ( 1900 )

Per Curiam,

Owing to the plaintiff’s negligence, the defendant was unable to deliver the package to the consignee at the address given by the plaintiffs. And if the facts averred in the affidavit of defense be established, it surely cannot be contended that the court could declare as matter of law that the defendant did not use due and reasonable diligence in its efforts to find the true address of the consignee. When a shipment arrives at its destination, and inability to deliver arises from lawful cause, it is not the law that the carrier is bound promptly to redeliver the shipment to the consignor, and cannot set up any excuse for its failure to do so. It is undoubtedly bound to use due and reasonable diligence in the care of the article. But if the consignor, for his own reasons, sees fit not to put his name or address on the package, and, in spite of diligent inquiry, the carrier is unable to discover who the consignor was, which is the allegation here, the court cannot declare as matter of law that the failure promptly to notify him is negligence. Granting that the defendant would be liable if it did not use due and reasonable diligence to notify the plaintiffs, negligence in that regard is not to be presumed from the admitted or undisputed facts of the case as it is now presented. It follows that even if the case can be distinguished from Corry v. R. R., 194 Pa. 516, and the affidavit of defense law applies to it, the court committed no error in refusing to enter judgment for the plaintiff.

The appeal is dismissed at the costs of the plaintiff, but without prejudice, etc.