Frohlich v. Pennsylvania Co.

Grant, J. (after stating the facts). 1. In a well-considered case by this court it was held that the consignor is the agent of the consignee in the shipment of goods, and that whatever contract he (the consignor) makes with the common carrier is binding upon the consignee. McMillan v. Railroad Co., 16 Mich. 79, 118. It was there said that the authority of the consignor to enter into special contracts with the carrier is to be presumed, and the carrier is under no obligation to inquire into it. The same rule is held in Ryan v. Railway Co., 65 Tex. 13, where many authorities are cited. Upon the record now before us, there was an agreement between the Heidencamp Mirror Company and the defendant that the mirror company, from among the cars delivered to it upon its side track, might select such as it should deem fit and suitable in which to ship its glass. There is nothing in this agreement contrary to public policy. . The — 121 — mirror company knew the character and weight of the products it shipped, knew what kind of cars were suitable for that purpose, and agreed to assume the risk of selecting. Every freight car is not suitable for the transportation of all kinds of products. A car suitable for the shipment of sand is not necessarily suitable for the shipment of cases filled with glass, and very heavy. An old coal car, suitable for shipping coal or like material, is not necessarily suitable for the shipment of glassware. There was no guaranty on the part of defendant that all its cars were suitable, in form or structure, for the shipment of glass. Under the agreement the mirror company undertook to select such cars only as were suitable for its purpose. The plaintiff and consignee, under this record and the authorities above cited, were bound, under this agreement, by the acts of their consignor, the Heidencamp Mirror Company. If it selected a car unsuitable for the transportation of the goods sold, the only remedy for the consignee is against the consignor. If this car had been furnished at the express request of — 122 — the consignor, and the defendant, knowing the purpose for which it was to be used, had furnished the car in response to such express request, the defendant would have assumed all liability for defects, and would not be permitted to say that the defects were open to the knowledge of the shipper, who therefore assumed the risk. The rule applicable in the case before us is thus stated by the text-writers: “ Where the shipper exercises his own judgment, is not deceived or misled by the carrier, and chooses a car for the transportation of his property, the carrier is not answerable for the sufficiency of the car, for in such a' case he does not trust to the carrier, nor rely upon the duty of the carrier, but, on the contrary, freely exercises his right of choice, and relies entirely upon his own judgment, so that there is no reason for affirming that the carrier was guilty of any wrong.” 4 Elliott on Railroads, § 1480. Hutchinson on Car. § 295 c; Chicago, etc., R. Co.v. Van Dresar, 22 Wis. 511; Ross v. Railroad Co., 49 Vt. 364; Harris v. Railroad Co., 20 N. Y. 232; 6 Cyc. 385. — 123 — Under this record, it was error not to give the following request: “ If the shipper seizes a car which has been delivered to it loaded with sand, and, on its own account loads it with a commodity for which it is unsuitable, and damage to the goods results, the railroad company is not liable on the ground of negligently furnishing an unsuitable car.” The learned counsel for plaintiff cite and rely upon Hunt v. Nutt, (Tex. Civ. App.) 27 S. W. 1031. They say that case is on all fours with this. The consignor in that case shipped a car load of meal. He asked for a car for the purpose. The car was furnished. It was, to all appearances, suitable. The meal was in fact damaged by some substance that smelled like creosote or “ sheep dip.” The company in that case furnished the car. Something had been previously shipped in it which caused the damage. The shipper had no choice of selection, had not agreed to inspect, and the defect was a hidden one. It is clear that the railroad company was liable. In Pratt v. Railroad Co., 102 Mass. 557, a specific car, — 124 — at the shipper’s request, was furnished to plaintiff for a specific purpose. It was defective. It was important to the plaintiff to ship his stock at once, rather than wait a week for better cars. He used the one furnished. It was defective, and there was evidence tending to show that he knew it. The court held that the carrier was bound to furnish a suitable car, and was not exonerated from liability, even though the plaintiff knew it to be defective, accepted and used it. It was said: “ Nothing less than a distinct agreement by the plaintiff to assume the risk would have that effect. ” It was also said: ‘' If the plaintiffs expressly agreed to assume the risk of defective cars, rather than wait a reasonable time for other cars, they cannot recover.” This case was affirmed by the Supreme Court of the United States. Railroad Co. v. Pratt, 22 Wall. 123. — 125 — If there had been other cars, and the plaintiffs in that case had been authorized to inspect and select one that was suitable, and they had chosen one that was unsuitable, the obvious conclusion is that the court would have held the carrier not liable, provided the defects in the car selected were obvious. We are therefore of the opinion that the selection by the Heidencamp Mirror Company of unsuitable cars is binding upon it and its consignees, and that x defects in cars suitable per se, which were so open as to be easily discernible upon inspection, were assumed by the plaintiff through the acts of its consignor. 2. The record in this case suggests another important question, but, as the case does not appear to have been tried upon that theory, and is not fully presented here, we decline to pass upon it. It is this: Assuming that the car upon which the goods were shipped was suitable in character and structure, and proper for use in the shipment of such goods, but was unsuitable and unsafe in — 126 — consequence of hidden defects, such as decayed flooring, or flooring of insufficient strength, would the. defendant, under such circumstances, be liable ? Or, perhaps, better stated thus: Did the arrangement for selection and inspection between the Heidencamp Company and the defendant impose upon the consignor the responsibility for hidden defects in cars otherwise suitable ? Reversed and new trial ordered. The other Justices concurred.