#### Toledo & Ohio Central Ry. Co. *v.*Giha, etc.

*Negligence*— Carriers—Delay *in delivering shipment after arrival*— Mistake *in railroad ear number*— Diligence *in identifying car before releasing to consignee.*

(No. 17928

Decided December 26, 1923.)

Error to the Court of Appeals of Lucas county.

Jesse Giha, doing business at Toledo under the name of G. T. Gilm, brought this action in the court of common pleas against plaintiff in error, for negligence in failing to deliver a car of potatoes after its arrival at destination. The potatoes were ordered from Addison Bros., at Norfolk, Va., who loaded them in a car designated G. A. No. 8615. At Norfolk, Va., this car was delivered to the initial carrier, and later was delivered to plaintiff in error, who transported it to its destination at Toledo. It was shipped on an order bill of lading, describing the car as G. A. No. 8616; the bill of lading containing the following notification: “Notify Geo. T. Giha at Toledo, State of Ohio.” The bill of lading also contained the following statement: “The surrender of this original order bill of lading, properly indorsed, shall be required before the delivery of the property.”

Giha was apprised of the shipment of the car, and on Saturday, June 30, 1917, found the same in the yards of plaintiff in error. After the intervening Sunday, to-wit, on Monday morning, July 2, Giha paid the bank the draft represented by the bill of lading No. 8616, and at 9 o’clock a. m. presented to the agent of the plaintiff in error a *190bill of lading for oar G. *A.*No. 8616. Its delivery was O. K.’d by the agent at that time, whereupon Giha proceeded to the yards of the railway company and demanded the delivery of car marked G. A. No. 8615. The yardman refused the delivery for the reason that the bill of lading presented called for a car with a different number from the one in the yards. Thereupon, about *9*a. m., on the morning of July 2, Giha again demanded the delivery of car No. 8615, offering to pay the invoice price therefor, and was again met with a refusal by the agent until its identity was established, which would relieve the company from responsibility. Thereupon, on July 2, between 9 a. m. and noon, the railway company’s agent telegraphed the shipper for instructions, and on the morning of July 5 received a telegram from the shipper, dated the preceding day, ordering the railway company to deliver the car No. 8615 to Giha. However, before the arrival of that telegram, the agent of the company, on his own responsibility, authorized the delivery of car G. A. No. 8615 to Giha.. The delivery was made about 3 p. m. on Tuesday, July 3.

The petition, after reciting Giha’s presentation of the bill of lading to the defendant company, alleges that the defendant neglected and refused to deliver the shipment of potatoes to Giha, and continued such neglect and refusal until after the close of business on July 3, 1917. On the trial, upon the facts stated, and which are substantially conceded, the defendant, at the close of its evidence, moved for a directed verdict, and renewed its motion at the close of the entire evidence. *191These motions were overruled by the trial court, and the cause was submitted to the jury, which returned a verdict for $262.50. A judgment for that amount in the trial court was affirmed by the Court of Appeals, whereupon the railway company instituted proceedings in error in this court.

*Messrs. Doyle & Lewis*and *Mr. Frederick W. Gaines,*for plaintiff in error.

*Mr. James Harrington Boyd,*for defendant in error.

By the Court.

The gravamen of plaintiff’s action in the trial court was for negligence in failing to deliver the shipment after its arrival. The order bill of lading contained a provision that its surrender, properly indorsed, should be required before delivery of the property. It is conceded that no order bill of lading was presented to the railway company prior to 9 a. m. on July 2, 1917. It is further conceded that when the original order bill of lading was presented it was for a shipment consigned to Addison Bros., as consignees, and that, though describing the consignment as 175 barrels of potatoes, it called for a car other than that found in the company’s railroad yards. That car was designated *G.*A. No. 8615, while the bill of lading presented called for Gr. A. 8616. The statement of facts preceding this opinion are all substantially conceded by the parties.

As we view this case, the question presented is whether such conceded facts preclude a recovery. It was conclusively shown that there was no negligence in failing to deliver on the part of the rail*192way company. When on the morning of July 2 the bill of lading was presented calling for an entirely different car from that which stood in the railroad yards, it became the duty of the company to exercise reasonable diligence in the establishment of its identity before delivery. That reasonable diligence was thus used is disclosed by the fact that, when apprised of the variance in car numbering, it at once telegraphed the consignor for instructions with reference to delivery. More than this it could not have done. To exact the delivery without investigation, of a car differing in designation from that called for in the bill of lading, would be a requirement of an act that might subsequently' prove to be hazardous for the railway company. Furthermore, not receiving an answer to his telegram, forwarded on the morning of July 2, the agent of the company, upon his own responsibility, on July 3 ordered the car delivered to the defendant in error. On July 5 a telegram dated July 4 was received from the shipper, ordering the car’s release. What exercise of care under the circumstances could be more reasonably expected than that utilized by the railway company we are a,t a loss to perceive. The complaint of the plaintiff was that the delivery of car No. 8615, at about 3 p. m. on July 3, was so late as to preclude him from obtaining haulage for the potatoes on the holiday succeeding. However, the railway company should not be held accountable for this, where otherwise, under the circumstances presented, it had reasonably performed its public duty in securing the identification of the car in question.

*193For the reasons stated it is the opinion of this court that upon trial the motions for a directed verdict in favor of the defendant below should have been sustained. The judgments of the lower courts are therefore reversed, and, proceeding to render the judgment which the trial court should have rendered, this court renders judgment in favor of plaintiff in error.

*Judgment reversed.*

Marshall, C. J., Robinson, Jones, Matthias and Day, JJ., concur.