The opinion of the court was delivered by: LEIBELL
This is a suit by Textron Inc., a manufacturer of textiles against two defendants, Lowell Trucking Corporation, an interstate common carrier by motor vehicle, and Louis Magnone, Inc., a local truckman, for the loss of 34 cartons containing about 63,000 yards of satin rayon piece goods of a value of $ 18,337.65. The cartons had been shipped from Lowell, Massachusetts, September 10, 1945 by Brooks Ltd. (a manufacturing agent of Textron Inc.) consigned to Marlene Sportswear Inc. in New York City. Lowell Trucking Corporation transported the shipment from Lowell, Massachusetts, to New York City. Marlene refused to accept the shipment when tendered by Magnone, who made local deliveries for Lowell. The goods were stolen the night of September 19-20, 1945 while on a truck in Magnone's garage at 111 West 15th Street, Manhattan. Magnone had received the cartons from Lowell's trailer on September 11th at Magnone's garage for delivery to Marlene Sportswear Inc. At the time of the theft Magnone was holding the cartons on a truck in Magnone's garage at Lowell's request and was awaiting further instruction from Lowell.
The complaint charges that both defendants are common carriers of goods for hire; that Lowell operates under a certificate of the Interstate Commerce Commission; that Magnone holds a public cartman's license issued by the City of New York; that Lowell had filed tariffs with the Interstate Commerce Commission and issued a bill of lading for the merchandise when shipped; that Magnone was Lowell's local delivery agent. The first cause of action is against Lowell for breach of its contract as a common carrier; the third cause of action asserts a similar claim against Magnone; the second cause of action is against Lowell for negligence, and fourth is against Magnone for negligence.
The defendant Lowell's answer contains certain denials and a defense that the consignee Marlene refused to accept the merchandise when tendered on September 11th; that notice of non-delivery was mailed to the shipper and consignee on September 13th; that no instructions were received from the shipper or the consignee during the free time allowed by the tariffs; that Lowell's liability as a common carrier ceased at 7 A.M. September 17th with the expiration of the free time; that thereafter Lowell's liability was only that of a warehouseman; that the shipment was kept at the premises of Magnone until stolen; that this storage was permissible under the provisions of Sec. 4(a) of the Bill of Lading and Item No. 1540 of Lowell's published tariffs; that Lowell was not guilty of any negligence in caring for the merchandise.
Magnone pleaded a number of special defenses to the third and fourth causes of action alleged in the complaint. These defenses were that plaintiff was not the real party in interest having allegedly assigned its claim to its insurance carrier; that title to the merchandise became vested in Marlene, the real party in interest; that Marlene refused the merchandise on September 11th and Lowell immediately gave notice of said refusal; that plaintiff suffered the merchandise to remain in Magnone's garage; that Magnone is not a common carrier; that Magnone was not guilty of negligence. The defense that Textron is not the real party in interest is completely refuted by the documentary evidence and will not be further considered.
The defendant Lowell has pleaded certain cross claims against the defendant Magnone: One for Magnone's breach of contract as a common carrier in respect to Lowell; a second for negligence; and, by amendment at the trial, a third on an alleged warranty and representation by Magnone, in order to induce Lowell to engage Magnone, that Magnone was of sufficient financial worth to be responsible for the safe delivery of goods received from Lowell and had a sufficient 'all risk' cargo policy of insurance in force to cover all merchandise received by Magnone from Lowell for delivery, which said agreement Magnone is alleged to have breached. Magnone denies that it was a common carrier, denies that it was guilty of negligence, and denies that it ever made any agreement with any warranty or representation as alleged by Lowell.
Plaintiff, Textron Inc., is engaged in the textile business. It manufactures cloth and purchases goods for finishing. It does its own converting. Through a manufacturing agent, Brooks, Ltd., plaintiff, in 1945, had some of the manufactured cloth made up into wearing apparel which it sold to the retail trade. This manufacturing work Brooks Ltd. let out to subcontractors, such as Marlene Sportswear Inc. Marlene had offices at 141 West 36th Street, New York City, and shipped the materials to plants in Pennsylvania for manufacture. Brooks Ltd. had no personnel of its own, except a part time employee. Its office at Lowell, Massachusetts, was with the plaintiff, and it was operated under plaintiff's supervision with plaintiff's employees. Brooks Ltd. also had an office in the home of Philip Brooks, at 18 Duncan Avenue, Jersey City, New Jersey. Brooks Ltd. was Philip Brooks trading as such.
The defendant, Lowell Trucking Corporation, is an interstate common carrier by motor vehicle, with terminals in New England and New York. In September 1945 it had terminals at Boston and at Lowell, Massachusetts. Its New York terminal was at 625 West 23rd Street, New York City. The New York terminal was wide enough to back in three trailers. It could accommodate six trucks side by side. Lowell had offices upstairs. Another truck operator, McCormak Co., had the right to use ther terminal for its incoming and outgoing freight. There was a large platform at the rear of the terminal on which Lowell could store 80 or 100 tons of freight, the capacity of 8 or 10 trailers. The Lowell Trucking Corporation was duly certificated by the Bureau of Motor Carriers of the Interstate Commerce Commission and engaged in business as an interstate common carrier for hire, transporting property pursuant to the terms of a Bill of Lading issued to the shipper and pursuant to a schedule of tariffs filed with the Interstate Commerce Commission.
The defendant, Louis Magnone, Inc., was the holder of a Public Cartman's License issued by the City of New York. Louis Magnone, Inc. was not a common carrier but delivered merchandise for about 10 business concerns by special arrangements with them, to consignees within the City of New York. Magnone had 6 or 7 trucks. Under an oral arrangement with Lowell, many of the shipments Lowell transported to New York City were turned over to Magnone at Magnone's garage at No. 111 West 15th Street, Borough of Manhattan, for delivery by Magnone's trucks and men to local consignees. The transportation furnished by Magnone must be considered to have been performed by the common carrier, Lowell. Title 49 U.S.C.A. § 302(c)(2). At the time Lowell's trailers transferred merchandise to Magnone's trucks at Magnone's garage, Magnone would receive a list of the shipments and also a driver's return receipt for each lot (Ex. C) on the printed form of the Lowell Trucking Corporation. The driver's return receipt was intended to be signed by the consignee named therein, who would pay the freight charges listed on the receipt (if it was a freight C.O.D. shipment) upon receiving the merchandise described therein.
The 34 cartons of rayon piece goods were accepted by the Lowell Trucking Corporation at Lowell, Massachusetts, September 10, 1945 (a Monday) from Brooks Ltd. of 750 Suffolk Street, Lowell, for transportation to New York City and delivery to the consignee, Marlene Sportswear Inc., 141 West 36th Street, New York City. There was issued to the consignor a uniform straight bill of lading on the printed form of Lowell Trucking Corporation (Ex. 2). On the reversed side of the Bill of Lading were printed the 'contract terms and conditions'. The Bill of Lading was the 'Uniform Straight Bill of Lading' as adopted by the Interstate Commerce Commission. 49 C.F.R. 595. It was intended for railroads. The pertinent provisions thereof are the following:
'Sec. 1(a) The carrier or party in possession of the property herein described shall be liable as at common law for any loss thereof or damage thereto except as hereinafter provided.'
'Sec. 4(a) Property not removed by the party entitled to receive it within the free time allowed by tariffs, lawfully on file (such free time to be computed as therein provided), after notice of the arrival of the property at destination or at the port of export (if intended for export) has been duly sent or given, and after placement of the property for delivery at destination has been made, may be kept in vessel, car, depot, warehouse or place of delivery of the carrier, subject to the tariff charge for storage and to carrier's responsibility as warehouseman, only, or at the option of the carrier, may be removed to and stored in a public or licensed warehouse at the place of delivery or other available place, at the cost of the owner, and there held without liability on the part of the carrier, and subject to a lien for all freight and other lawful charges, including a reasonable charge for storage.'
Tariffs No. 2-B (Ex. 3) filed by Lowell with the Interstate Commerce Commission contained the following provisions in respect to the redelivery of freight and storage:
'Item No. 1535. Redelivery of Freight
If the consignee or consignor requests the carrier to redeliver freight to the place of delivery specified in the gill of lading, on a shipment which the carrier, through no fault of its own, has been unable to deliver upon tender of delivery, or after a reasonable effort to affect delivery has been made, the charges for such redelivery will be as follows:
Charges will be computed on the rate applicable from the point of delivery specified on the bill of lading to the point at which the carrier's nearest terminal is located, plus the rate applicable from the point at which the carrier's nearest terminal is located to the point of delivery specified on the bill of lading. The charges set forth herein to be in addition to the charges for storage as set forth in Item No. 1540. For rate scale numbers to apply between points in New Jersey and New York see Item No. 1565.'
(a) Shipments which, through no fault or negligence of the carrier, are refused by consignee, or which the carrier for other reasons beyond its control cannot deliver, will, after the expiration of free time as provided in paragraph (b) of this rule, be placed in storage and notification thereof given in writing to the shipper and consignee.
(b) Shipments which, through no fault or negligence of the carrier, remain undelivered after forty-eight hours (free time) (See Note) from the first seven o'clock A.M. following the day on which notification of the failure of the carrier to effect delivery is sent to the shipper and consignee, may thereafter be held on the carrier's premises subject to responsibility on the part of the carrier as warehouseman only, and to storage charges as provided in paragraph (c); or, at the option of the carrier, may be removed to and stored in a public or licensed warehouse at the place of delivery or other available place, at the cost of the owner, and there held without liability on the part of the carrier, and subject to lien for all freight and other lawful charges, including a reasonable charge for storage.
Note -- In computing free time Sundays and legal holidays (not half holidays), National, State and Municipal, will be excluded. When a legal holiday falls on a Sunday, the following Monday will be excluded.
(c) The following rates and minimum charges for storage will be assessed on less truckload shipments held on the carrier's premises beyond the free time set forth in Paragraph (b).
Period Beyond Free Time Rates
For each of the first five days beginning 2 cents per hundred pounds
with the expiration of free time as (note) per day or fraction
provided in Paragraph (b) hereof. thereof.
For the Sixth and each Succeeding day 3-3/4 cents per hundred pounds
(Note) per day or fraction
Note. The minimum storage charge per shipment will be 60 cents.
(d) In computing storage charges, fractions of 100 pounds will be treated as 100 pounds, and fractions of a day will be treated as a day.'
Item No. 1540 of the carrier's tariff contains two specific and binding agreements of the carrier. In subdivision (a) the carrier agrees without any condition or reservation that shipments which 'are refused by consignee' will, after the expiration of free time as provided in paragraph (b) of this rule, be placed in storage and notification thereof given in writing to the shipper and consignee. Subdivision (b) is broader and provides that after the expiration of the 48 hours free time following the sending of notice of non-delivery to the shipper and consignee, the carrier may either (1) hold the shipment 'on the ...