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July 17, 1952



J. Webster Jones, Philadelphia, for appellant.

Rawle & Henderson, Harrison G. Kildare, Joseph W. Henderson, Philadelphia, for appellees.

Before, Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.

Author: Hirt

[ 171 Pa. Super. Page 24]

HIRT, Judge.

Plaintiff, Arabian American Oil Company, shipped 12 boxes of earthenware sinks from Trenton Potteries Company, in Trenton, New Jersey, to the warehouse of defendant E. A. Gallagher in Philadelphia over the motor freight lines of appellant, Kirby & Kirby, Inc., a common carrier. Earthenware is fragile and because these sinks ultimately were to be exported, the manufacturer

[ 171 Pa. Super. Page 25]

    at Trenton packed them in wooden cases instead of crates commonly used for domestic shipments. On arrival at the warehouse in Philadelphia an inspection disclosed that a number of the sinks were broken. Plaintiff thereupon brought this action in trespass for damages against both the warehouseman and the carrier. The case was tried by Judge Piekarski without a jury. On sufficient evidence it was found that the carrier received the sinks in good condition and that they were not damaged in the possession of defendant Gallagher. The court accordingly concluded that the Kirby company was solely liable for the loss and entered judgment against that defendant alone, in the amount of the agreed value of the sinks. This is the appeal of Kirby & Kirby, Inc., from the refusal of the lower court to enter judgment in its favor n. o. v. It is contended that the goods were so packed as to mislead appellant as to risks of carriage assumed. An insurance company advanced the value of the damaged sinks to the plaintiff, its insured, on a 'borrowed and loan' agreement. Appellant further contends that regardless of whether the shipment was properly packed, it is entitled to the benefit of this insurance under the 'Benefit of Insurance' clause of the bill of lading, and therefore is not liable to plaintiff in any amount. We find no merit in either contention; the judgment will be affirmed.

The only markings on the shipment were the words 'This Side Up' on the top of each box. But the failure of the shipper to mark the packages as 'fragile' does not relieve the carrier from liability under the circumstances. The principle of Bell Telephone Co. v. American Rwy. Exp. Co., 92 Pa. Super. 180, on which appellant strongly relies, is not controlling here. In that case the shipment was a box of radio tubes of 'delicate and fragile construction', which were destroyed in transit. Judgment was entered against the shipper

[ 171 Pa. Super. Page 26]

'because of the failure of the plaintiff [as shipper] to mark on the package the fact that the contents were fragile, thus putting the defendant [carrier] on notice in order that care might be exercised in proportion to the greater risk involved in the shipment'. The rule applied was the 'established principle of law * * * that no responsibility rests on the [carrier] for the loss of property arising from a wrongful act of the shipper * * *' But though charging the shipper with deceptive conduct, that case did not hold that failure to mark the package 'fragile', in itself, was a fraud on the carrier. The carrier's bill of lading provided that packages containing fragile goods be 'so marked and packed as to insure safe transportation * * * with ordinary care'. The shipper in that case was charged with fraud, barring recovery, from the fact that the requirement of the bill of lading for such marking was reasonable and had not been met, with the result that the carrier was justified in exercising less care than the actual character of the goods required. In the instant case the carrier's contract with plaintiff did not demand such marking and the nature of the shipment did not require it. The bill of lading referring to the shipment as 'earthenware' gave ample notice that the plumbing fixtures, accepted for carriage, were breakable. There was no attempt at concealment of the nature of the articles and the plaintiff here is not chargeable with imposition on the carrier in any respect.

The earthenware sinks were properly packed for shipment from Trenton to Philadelphia. It is therefore unimportant that they were consigned to defendant Gallagher for the purpose of testing the sufficiency of the packing to withstand rough handling by foreign stevedores and others in exporting them to Arabia, the ultimate ...

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