Automatic Merchandising Co. v. Delaware & Hudson Co.

Opinion by

Beaver, J.,

The defendant, a common carrier, received from the agent of the plaintiff certain property described in the bill of lading, “10 peanut cans, 10 iron stands, weight 1,000 pounds, consigned to Automatic Mdse. Co., destination Brooklyn, state of New York.”

Among the conditions of the bill of lading were contained: “Section 1. The carrier or party in possession of any of the property herein described shall be liable for any loss thereof or damage thereto, except as hereinafter provided.

“No carrier, or party in possession of any of the property herein described shall be liable for any loss thereof or damage thereto or delay caused by the act of God, the public enemy, quarantine, the authority of the law.

“Claims for loss, damage, or delay must be made in writing to the carrier at the point of delivery or at the point of origin within four months after delivery of the property, or, in case of failure to make delivery then, within four months after a reasonable time for delivery has elapsed. Unless claims are so made, the carrier shall not be liable.”

The appellant states the question involved as follows: “Is a common carrier liable to a consignor for the value of goods which it fails to deliver according to its contract, the goods having been taken from its possession by a constable upon a writ of attachment, the proceedings upon which the writ issued being coram non judice and void, for the reason that the proceedings were under the Act of July 12,1842 (P. L. 339, Sections 27 and 28) and the defendant was a foreign corporation, and the writ itself being-defective on its face in that it was returnable too late?”

The appellant states the question involved more strongly against itself than would seem to be necessary in order to dispose of the case upon the ground upon which the court below reached its conclusion. The court below said, in passing upon the exceptions to the report of the referee: “Whether its (appellee’s) bailee was bound at its peril to know the shipper was a nonresident, or, if not. that, whether it was subject to constructive notice, and as such was put upon inquiry by the nature and circumstances of its contract, and in either event was bound to disregard or contest the attachment, because of the shipper’s nonresidence, are questions which, under the view taken of the other features of the case, need not be now considered.” v

It seems to be sufficient for the purposes of this case and avoids all question as to the notice brought to the appellant by the writ itself that the proceedings were under the Act of 1842, P. L. 339, secs. 27 and 28. Section 28 provides that “Every such attachment shall be made returnable not less than two, nor more than four, days from the date thereof,” etc; The attachment which was served upon the appellant was dated January 22, 1909, and in it the return day was fixed on January 29, 1909, seven days after the date of the writ. It was, therefore, not in accordance with, the terms of the act and was, therefore, as shown upon its face, illegal.

The bill of lading provides that the common carrier or party in possession of any of the property therein described shall not be liable for any loss thereof, or damage thereto, or delay caused by the act. of God, the public enemy, quarantine, the authority of the law. The only possible ground upon which the carrier could, therefore, excuse itself for its failure to complete the contract was the authority of the law, but the referee has found, and the attachment itself shows, that the appellant surrendered the property in its possession without authority of law and, therefore, had no excuse for its failure to deliver the property, as it undertook to do under its bill of lading.

It is true that under the Act of June 13,1874, P. L. 285, the defendant might have been relieved of liability under its second section, which provides, “That where goods, wares or merchandise shall be taken from the possession of any warehouseman, wharfinger, carrier or other bailee by writ of attachment, replevin or other legal process, such warehouseman, wharfinger, carrier or other bailee shall not be liable therefor to the owner of such goods, wares or merchandise or to the holder of any receipt, voucher or bill of lading given for the same, saving and reserving, however, to such owner or holder all legal remedies for the recovery of the said goods, wares or merchandise from any person unlawfully detaining the same, or for the recovery of damages against any person unlawfully taking the same.” But the defendant, the appellant here, has not been brought, as we view the case, under the provisions of this act of 1874. It is only where goods, wares or merchandise shall be taken from the possession of any warehouseman, wharfinger, carrier or other bailee, by writ of attachment, replevin or other legal process, that the act applies. But there was no valid writ of attachment in the case; it was entirely void, as the appellant admits, but the clear implication of the law is that the go.ods must be taken by some legal process, and as they were confessedly not taken by legal process but by a void attachment, we cannot understand how the appellant can take advantage of the provisions of this act.

The question, therefore, simply narrows itself down to the liability of the defendant under the void attachment which was served upon it and under which it delivered the goods to the constable serving it.

Leaving out of view, therefore, entirely, the fact that the defendant was a foreign corporation, as alleged in the appellant’s statement of the question involved, and assuming, as the question assumes, that the proceedings were under the Act of 1842, P. L. 339, and the writ itself being defective on its face in that it was returnable too late, we see no reason why the defendant should not be held to its full liability as bailee as a common carrier, as provided under its own contract. This seems to be the ground upon which the court below ruled the case and we are in entire accord with the disposition which was made of it for that reason.

If authority be needed for such a plain proposition, it is to be found in Pantall v. Dickey, 123 Pa. 431, in which the court, referring to an attachment issued under the act of 1842, says: “The language of the section is peremptory, commanding that the defendant shall be proceeded against by summons returnable not less than two, nor more than four, days from its date. There were six days intervening between the issue and the return of the writ in this case, and the act was, therefore, clearly and palpably transgressed. If there was no lawful writ, there was no jurisdiction of the alderman to entertain the case, and hence he could render no valid judgment. Of course, the judgment could have been and would have been reversed upon certiorari. But the judgment being void for want of jurisdiction to enter it, it matters not how, or in what mode, or at what time the objection on that ground is brought to the attention of a supervising court. Being void, it has no efficacy at any time.”

In Lloyd v. Haugh & Keenan Storage & Transfer Co., 223 Pa. 148, it was said: “If a carrier is sued for breach of legal duty, the first thing to be determined is whether he is a common carrier or a private carrier, for the status must first be determined before the duty can be known to exist. The learned judge correctly held that the defendant here was a common carrier. It follows that the burden was on the defendant, in seeking to escape liability for the goods destroyed, to show that the loss was to be referred to some one of the exceptions to the common-law rule.” That burden rested upon the defendant here, and, having failed to bring itself within the provisions of the act of 1874, it should be held to be subject to its common law liability, unless the evidence clearly shows that it was within one of the exceptions to the common-law rule. This, as we understand it, is not claimed and, therefore, that liability, as already intimated, should prevail.

The judgment is, therefore, affirmed.