
    The C. L. Hils Co. v. The Louisville & Nashville Rd. Co.
    (Decided January 16, 1928.)
    Messrs. Goebel, Dock & Goebel, for plaintiff in error.
    
      Messrs. Freiberg, Avery & Simmonds and Mr. Howard L. Witherby, for defendant in error.
   Hamilton, P. J.

The Louisville & Nashville Railroad Company brought suit in the municipal court of Cincinnati against the C. L-. Hils Company to recover a balance of $90.95, due for freight and demur-rage charges on an interstate shipment of a car of waste paper.

A jury was waived and the case submitted to the court on an agreed statement of facts. The municipal court rendered judgment irt favor of the Louisville & Nashville Railroad Company against the C. L. Hils Company for the amount claimed.

The Hils Company prosecuted error to the court of common pleas, which court affirmed the municipal court,- and the Hils Company prosecutes error to this court.

The Hils Company claims it is not liable for the freight and demurrage charges in this case, as it was only acting as agent for the Standard Bag Company, of Augusta, Ga., the consignor of the shipment.

It appears from the agreed statement of facts that the Standard Bag Company, of Augusta, Ga., delivered to the Georgia Railroad, the initial carrier, a carload of waste paper, consigned to the Franklin Strawboard Company, at Franklin, Ohio. The Standard Bag Company sent the original bill of lading to the C. L. Hils Company, of Cincinnati, Ohio. Upon arrival of the car in Cincinnati, the C. L. Hils Company presented the bill of lading to the railroad, and directed that the car be diverted to the Mt. Vernon Strawboard Company at Mt. Vernon, Ind. The Mt. Vernon Strawboard Company refused the shipment. Thereupon “the C. L. Hils Company ordered the plaintiff to reconsign said car to themselves (the C. L, Hils Company) at Cincinnati, Ohio, with the additional instructions that all charges were to follow.”

Upon arrival of the car at Cincinnati, Ohio, the C. L. Hils Company refused to accept the shipment. Later, the Louisville & Nashville Railroad Company suggested to the Hils Company that the paper be sold, in order to save unnecessary charges and demurrage. The Hils Company notified the railroad company that it was not in any way interested in the shipment, and suggested that the paper be sold in accordance with the letter regarding the same. The railroad company thereupon received bids for the paper, and eventually sold it to the highest bidder for $10 per ton, the proceeds of the sale amounting to $131.25. The freight and demurrage charges which had accrued were $222.20, leaving a deficit of $90.95, which is the amount sued for, and for which judgment was entered in this case.

As heretofore stated, the defense of the Hils Company was that it was not interested in the shipment other than as agent of the original consignor, and that the original consignor, and not the Hils Company, was liable for freight charges.

On the question of agency, it is sufficient to say that there is nothing to show that the Louisville & Nashville Railroad Company knew of any arrangement existing between the consignor and the Hils Company concerning the same. However that may be, the liability here turns on the question of delivery. On this question the rule is that the consignor, of goods is primarily liable for the payment of the freight, as the party making the contract. Louisville & Nashville Rd. Co. v. Central Iron & Coal Co., 265 U. S., 59, 44 S. Ct., 441, 68 L. Ed., 900.

It is also the rule that a consignee cannot accept delivery of an interstate shipment of goods without incurring liability for the carrier’s lawful charges, known or unknown, supposed to be prepaid or otherwise, and no matter what the consignee’s actual relation to the shipper is. Western & Atlantic Ry Co. v. Underwood, (D. C.) 281 F., 891.

It has also been held that a consignee is under no obligation to receive or accept a shipment consigned to it where such a consignment was in no way sought or ordered by it, or when it is not in accordance with its contract; but, when it has exercised an act of dominion over it consistent only with the idea of its acceptance, it will be liable for the freight charges thereon. West Jersey & S. Rd. Co. v. Whiting Lumber Co., 71 Pa. Super. Ct., 161.

In the case of Cincinnati & Columbus Traction Co. v. N. & W. Ry. Co., 8 C. C. (N. S.), 134, 18 C. D., 543, it was held:

“While a bill of lading does not provide that demurrage for the detention of the car shall be paid by the consignee or his assignee, yet an assignee by delivering the bill of lading to the railway company and accepting the goods becomes bound by an implied promise to pay all specified charges.”

These authorities are sufficient to show the law to be that the Hils Company was properly held for the freight and demurrage charges, if, by its conduct, it exercised acts of dominion over the shipment consistent only with the idea of its acceptance.

Summarized, the facts in the case show that, while the Hils Company was not named consignee in the original bill of lading, the company did have possession of the bill of lading which gave control of the shipment. With the bill in its possession, it exercised dominion over the car by directing the carrier to divert the shipment to Mt. Yernon, Ind. Upon refusal of acceptance at Mt. Yernon, the Hils Company ordered the carrier to reconsign the shipment to it, at Cincinnati, Ohio, with instructions that all charges were, to follow. These facts show the exercise of dominion over the shipment, consistent only with the idea of its acceptance and acknowledgment of liability for the freight charges.

In further support of the conclusion here reached see Pere Marquette Ry. Co. v. French & Co., 254 U. S., 538, 41 S. Ct., 195, 65 L. Ed., 391, and New York Central & Hudson River Rd. Co. v. York & Whitney Co., 256 U. S., 406, 41 S. Ct., 509, 65 L. Ed., 1016.

The question of conversion suggested in the brief cannot be considered in this case.

Judgment affirmed.

Mills and Cushing, JJ., concur.  