
    The S. A. Gerrard Co. v. New York, New Haven & Hartford Ry. Co.
    (Decided July 7, 1930.)
    
      Messrs. Hightower, O’Brien $ Porter, for plaintiff in error.
    
      Messrs. Maxwell é Bamseg, for defendant in error.
   Hamilton, J.

The railroad company, defendant in error here, sued the 8. A. Gerrard Company, plaintiff in error here, for the recovery of freight charges. The Gerrard Company filed a demurrer to the railroad company’s petition, which demurrer was overruled by the trial court. The Gerrard Company, not desiring to plead further, judgment was entered in favor of the railroad company and against the Gerrard Company, from which judgment error is prosecuted in this court.

Did the petition state a cause of action against the defendant, entitling the plaintiff to recover the judgment?

After alleging the corporate existence of the parties, the petition in substance alleges that on July 10, 1926, E. J. Thompson, of Perry, Georgia, delivered to the Central of Georgia Railway Company a shipment of peaches, consigned to the S. A. Gerrard Company, Potomac Yards, Virginia. Plaintiff says that on July 14,1926, the S. A. Gerrard Company issued diversion instructions to the Central of Georgia Railway Company on a car containing said shipment, and diverted said car to the H. B. Fiske Company, Providence, Rhode Island. The Fiske Company refused to accept delivery, and the shipment was sold by the New York, New Haven & Hartford Railroad Company, plaintiff and destination carrier.

The petition further states that the plaintiff sold the peaches, and, when sold, did not realize the amount of freight and demurrage charges on same. The amount of the freight and demurrage charges is $176.75, for which it asks judgment against the S. A. Gerrard Company, with interest and costs.

The question then is: Under the facts alleged and the law applicable thereto, did the Gerrard Company, by reason of the diversion orders, carried out by the railroad company, become liable for the freight and demurrage charges ?

It is contended by counsel for plaintiff in error, ■the Gerrard Company, that the company is not liable for freight and demurrage charges, for the reason that there was never any tender or delivery of the shipment to it, nor was there at any time acceptance of the shipment in question, other than to request the railroad company to forward the shipment to another destination.

The plaintiff in error relies largely on the case of Wallingford Bros. v. Bush, (C. C. A.), 255 F., 949. That ease, however, is not controlling here, for the reason that in that case the second consignee accepted delivery of the shipment, which would relieve the first consignee of liability for the freight charges on a through shipment. It is true this court held in the case of C., C., C. & St. L. Ry. Co. v. M. Degaro Co., decided April 14,1930, affirmed by the Supreme Court December 24,1930, M. Degaro Co. v. C., C., C. & St. L. Ry Co., 123 Ohio St., 179, 174 N. E., 587, that a shipment from Washington, diverted by Denny & Company to themselves at Cincinnati, was one continuous shipment, and that the reconsignment order by Denny & Company did not constitute constructive delivery of the shipment to Denny & Company at Laramie, Wyoming, and, further, that by reason of the continuous shipment the original shipper could and did exercise its right of stoppage in transitu when the goods arrived at Cincinnati, and before delivery to the new consignee. That decision, however, was based upon the fact that there was one continuous shipment, and that the right of stoppage in transitu was by reason thereof.

In the ease here under consideration the Gerrard Company gave orders to the railroad company to divert the shipment consigned to it at Philadelphia, and, in doing so, must be held to have impliedly assumed liability for the payment of the freight, at least from the point of diversion to the new destination, in the event the consignee in the diversion order refused to accept the goods. This is necessary for the carrying on of the industry of the country. Any other holding would destroy the right'to give diversion orders. To hold the original consignor or shipper under such circumstances for the payment of freight and demurrage charges, which the carrier might do, would he to subject him to the whim or will of his original consignee to divert shipments all over the country, incurring freight and demurrage charges leading to a ruinous financial situation growing out of an ordinary consignment by the original shipper. The reason for the rule is sufficient.

We are not holding that there was actual or constructive delivery to the Gerrard Company, but we are deciding that, in the conduct of shipping interests and business, when the Gerrard Company, as it had a right to do, gave diversion -orders to a new destination, which were accepted by the railroad company, it thereupon impliedly bound itself to pay the freight from the diversion point to the new destination.

There was sufficient control exercised by the Gerard Company over the shipment by issuing diversion orders to make it liable to the railroad company for the freight and demurrage charges. See Pennsylvania Rd. Co. v. Rice Coal Co., 113 Ohio St., 34, 148 N. E., 349; N. Y. Cent. Rd. Co. v. Warren Ross Lumber Co., 234 N. Y., 261, 137 N. E., 234, 24 A. L. R., 1160.

The judgment of the court of common pleas is affirmed.

Judgment affirmed.

Cushing, P. J., and Ross, J., concur.  