Roadway Express, Inc. v. Fidelity Guaranty Fire Corp.

3 N.E.2d 805, 52 Ohio App. 401, 19 Ohio Law. Abs. 641, 6 Ohio Op. 406, 1935 Ohio App. LEXIS 373

• Court: Ohio Court of Appeals
• Decided: June 25, 1935
• Docket: No 2524
• Status: Published

Opinions

OPINION.

By WASHBURN, J.

As we view the law applicable to such a state of facts, we do not think that the conduct of the parties constituted' a new contract of shipment of the goods from Richmond to Akron, so as to bring, the same within the terms of the policy of the Fidelity Co., but that such transaction constituted a diversion of the original shipment, the entire transaction being between a single carrier and the consignor and owner,of the goods.

There is no evidence of an express contract made on December 4th, and the carrier’s undertaking to return said goods to Akron was not referable to a now agreement, but was rather an acknowledgment 1 of- its obligation under the bill of lading to comply with the directions of the owner of the goods to divert the shipment, while in transit, to a new destination, and the promise of the owner to pay the additional charges was not an implied promise arising out of a new contract, but was an express promise made in the bill of lading as a part of the original contract of shipment.

• The parties themselves construed their transaction at Richmond to bo a diversion ■of the original shipment, and their subsequent conduct is consistent with such construction and inconsistent with any other construction; and there is evidence in the record that the agc-nt of said first or other insurance ccmpany was notified by the carrier of the damaged condition of said goods while they were at Richmond, and that “he instructed return of load to Akron,” which act is also consistent with said construction of said transaction..

We are justified, under the facts and circumstances of this case, in giving effect to- such construction of the parties to and interested in said transaction, and therefore we hold-that the goods were not lost upon a shipment made after December 1, 1931, at noon, and that the Fidelity Oo. is not liable under its policy for any part of such loss.

We have heretofore stated that said carrier did not report said loss to the Fidelity Co., and made no claim whatever against it until the bringing of this suit, and perhaps that statement should be somewhat amplified.

The record discloses that said carrier reported said loss, not to the agents of the Fidelity Co., but to the agents of said other insurance company, and that, some time thereafter, such agents wrote to the agents of the Fidelity Co. about said loss and suggested that the loss was covered by the Fidelity policy, rather than by the policy of the other insurance company, which other company was being urged by the carrier to pay said loss, and the' record discloses further that the statement by the Fidelity Co., that it was not liable and would deny liability, was not made to the carrier or to any agent of the carrier, but was made in a letter to its own resident agents; and there is no' evidence in the record that the contents of said letter were made known to said carrier or to any agent of said carrier. .....-

It is true that such agents of said other insurance company negotiated with the resident agents of. the Fidelity Co. for the issuance of its policy, but such policy was issued and countersigned by its resident agents; other than that, such agents of the other insurance company were never in any sense the agents of said carrier or said tire company, and said agents of such other insurance company, not- being regular agents of the Fidelity Co., c.ould not properly be the agents of the Fidelity Co. or said carrier as to any matter as to which there was a conflict of interests between said carrier and the insurance company for which they were regular agents; and the evidence in the record does not justify the conclusion that such agents, in writing about said loss to the agents of the Fidelity Co., suggesting that it was liable for said loss, represented or claimed to represent said carrier, or any one except the insurance company for which they were regular agents, the interests of which company they were attempting to serve by trying to get the Fidelity Co. to pay said loss.

We can find no evidence in the record indicating that after said loss said carrier communicated, or attempted to communicate, with said Fidelity Co., or that it directed any one to communicate with said company in its behalf, or that any one who did communicate with the Fidelity Co. with reference to said loss claimed to do so on behalf of said carrier.

The relief sought by the petition in error will therefore be denied, and " the relief sought by the cross-petition in error granted, and the judgment of the Common Pleas Court reversed; and the material facts being undisputed, and the reasonable inferences deducible therefrom admitting of but one reasonable conclusion, judgment will be rendered in favor of the Fidelity & Guaranty Fire Corp., dismissing the petition of the carrier, the Roadway Express, Incorporated, at its costs.

FUNK, PJ, and STEVENS, J, concur in judgment.