Herman J. Obert, Philadelphia, for appellants.
F. Hastings Griffin, Jr., Barnes, Dechert, Price, myers & Rhoads, William F. Zearfaus, Philadelphia, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Ross, Gunther and Wright, JJ.
[ 174 Pa. Super. Page 463]
This assumpsit action was brought by the plaintiff carrier to recover freight and demurrage charges upon a railroad shipment of two motor trucks. The appeal is from the action of the court below holding the answer of defendants insufficient as a matter of law and entering judgment for plaintiff. E. A. Gallagher and Sons were the shippers and the action was instituted against the personal representatives of Edward A.
[ 174 Pa. Super. Page 464]
Gallagher, a deceased partner, and Arthur A. Gallagher, the surviving partner, as individuals and partners. Both defendants have separately appealed.
The trucks, which were owned by the United States Treasury Department, were originally consigned to Greenville Piers New Jersey, on a government bill of lading. The Pennsylvania Railroad accepted responsibility for damage to the trucks en route to Greenville Piers, and returned them to Philadelphia for repair under the supervision of the defendants. After repair the trucks were to be returned to their original destination, Greenville Piers, but the Gallaghers, who were acting as agents for the United States Treasury Department, consigned them to Horseheads, New York; from this location they were reconsigned to Greenville Piers at the direction of the defendants. E. A. Gallagher and Sons were designated as the shipper on the bill of lading.
Section 7 of the Uniform Bill of Lading, approved by the Interstate Commerce Commission, under which the shipment here involved was carried, provides in part: 'The consignor shall be liable for the freight and all other lawful charges, except that if the consignor stipulates, by signature, in the space provided for that purpose on the face of this bill of lading that the carrier shall not make delivery without requiring payment of such charges and the carrier, contrary to such stipulation, shall make delivery without requiring such payment, the consignor * * * shall not be liable for such charges.' The language after the word 'except' in the above quotation is known as the non-recourse provision of the bill of lading. The stipulation on the face of the bill of lading was not signed by the shippers.
The sole question for determination is whether a consignor, who directs a shipment in interstate commerce,
[ 174 Pa. Super. Page 465]
is liable for freight and other lawful charges under the terms of a uniform bill of lading where the carrier is fully aware, prior to shipment, that the consignor is ...