bility for these acts, and no such situation appears here. The whole question turns on what the contract called for. Only the clearest requirement to do something which is dangerous can relieve the contractors from the exercise of ordinary prudence. The contract in question is very different from a specific consent to stow all the cargo in a place where it is likely to have to be jettisoned in a storm, or a contract to build a bridge according to specifications furnished by the owner which would result in a weak structure. It is contended that the master of the lighter should have warned the stevedores of the danger. We think the District Court was correct in holding that the contract with the lighterage company was only for carriage and that a price was made which expressly did not include trimming by the lighter. The master of the lighter, as found by the court below, protested repeatedly at what was being done. This protest was made both to the foreman of the stevedores, and on the second day to one of the Pellegrinos. The statement of the trial judge that in all probability the protests did not get any further than an Italian, who did not understand English, seems to have been inadvertent, for both of these men testified in English at the trial and would certainly have understood words used every day in their business. We think the master of the lighter did all that could be reasonably expected of him under the circumstances. The decree should be modified so as to hold the stevedores primarily liable. PERE MARQUETTE RY. CO. v. CHICAGO & E. I. R. CO. et al. No. 2642. INDEMNITY 13(1)—IMPLIED CONTRACT--CONNECTING CARRIER-WRONGFUL DELIVERY OF Goods. Where official classification provided for two standard forms of bills of lading to be issued, one "Straight Bill of Lading," which was not required to be surrendered before delivery of goods, the other "Order Bill of Lading," containing the provision "Consigned to order of — -," " and required to be surrendered before delivery, a waybill issued by an initial carrier stating the consignee to be "order of" a person named, although other than the shipper, held sufficient to advise a connecting carrier that an order bill of lading was outstanding and to render it liable to initial carrier against which judgment had been rendered for delivery without surrender of the bill. Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois. Claim of the Pere Marquette Railway Company against the Chicago & Eastern Illinois Railroad Company and Thomas D. Heed, its. receiver. From a decree disallowing its claim, petitioner appeals. Reversed. F. Harold Schmitt, of Chicago, Ill., for appellant. Before BAKER, ALSCHULER, and EVANS, Circuit Judges. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes ALSCHULER, Circuit Judge. This appeal involves the right of appellant, the initial carrier, to recover from appellee, the connecting and delivering carrier, for alleged wrongful delivery by appellee of two shipments of beans consigned by the respective shippers in Michigan to "order of A. J. Thompson & Co., Evansville, Ind.," as recited in the bills of lading which appellant issued to the shippers. Upon the written order of the consignee, appellee delivered the shipments without requiring surrender of the bills of lading, whereby loss accrued to the shippers, and suits were brought in the state court of Michigan which resulted in judgments in favor of the shippers against appellant; the right of recovery having been sustained by the Supreme Court of Michigan, in Thomas et al. v. Blair et al., Receivers Pere Marquette R. R. Co., 185 Mich. 422, 151 N. W. 1041. The action was by appellant to recover from the delivering carrier the loss which the initial carrier thus sustained. There is no question here of the right of recovery against the initial carrier. The only bar urged against recovery by appellant is that the initial carrier negligently failed to notify the connecting carrier that the bills of lading were of the kind that required surrender before delivery of the shipments. The special master, to whom the petition against the appellee receiver was referred, found that the initial carrier negligently failed to inform appellee that the bills of lading were such as required surrender before delivery, and he reported against appellant's right of recovery. In this, the District Court concurred, and decreed against appellant, dismissing the petition. The official classification in force at the time of these transactions made provision for two standard forms of bills of lading to be issued by the railroad carriers on receipt of such freight. These forms are alike save in one particular. The first is printed under the title "Straight Bill of Lading-Original-Not Negotiable," and the other under the title "Order Bill of Lading," and it contains this provision, not found in the first, and printed in larger type than the body of the instrument, viz.: "The surrender of this original order bill of lading, properly indorsed, shall be required before delivery of the property." The first form contains the line, "Consigned to and the second the line, "Consigned to order of To distinguish further between the two, the straight bill of lading is required to be printed on white paper, and the order bill of lading on yellow paper. No other forms, applicable to such shipments, were provided or in use, and these were the forms employed by the railroads in question; those issued for these shipments being the "order" bills of lading. The bill of lading is delivered to the shipper, and in practice the initial carrier makes out a waybill which accompanies the shipment; and the waybill is all which the delivering carrier has to indicate the nature of the original bills of lading. With the straight bills of lading, the delivering carrier, being informed by the waybill who is the consignee, needs concern itself only with the identity of the person to whom it delivers the goods; sur render of the bills of lading not being required. If therefore the waybill, which comes to the delivering carrier, indicates that it was a straight bill of lading which the initial carrier issued, the delivering carrier need only assure itself that the person to whom the delivery of the shipment is made is the consignee himself, or some one in his right. The waybills here in question showed the names of the shippers, L. P. Thomas in one, and Doty & Doty in the other, and in both of them the consignee is stated to be "Order of A. J. Thompson & Co., Evansville." It is claimed that these waybills did not inform the connecting carrier that the bills of lading issued were "order" bills which would require their surrender before delivery of the shipment was authorized. Appellee's general freight agent at Evansville testified that in practice the order bill of lading was generally employed where the shipment was to the order of the shipper, and that it was very unusual to receive at that station shipments billed to the order of the consignee; that such as had been so received had at times been delivered without requiring surrender of the bills of lading; that sometimes such waybills had the further notation "do not deliver without surrender of original bill of lading." Being asked on cross-examination whether the information on these waybills was sufficient to apprise a railroad man of the nature of the bill of lading which was issued, he replied: "Because of the peculiar manner in which this shipment was billed, I could not judge what kind of a bill of lading was issued for the shipment." Another witness for appellees, familiar for many years on its road with handling waybills and bills of lading, testified as to waybills like those here in question, "I should say it was peculiar and unusual." A number of witnesses from other railroads, experienced in freight matters, testified that a shipment as shown by these waybills was not unusual, and would in practice be treated as though an order bill of lading had been issued for the shipment requiring surrender before delivery. If the truth is as stated by appellees' freight agent that from these waybills one familiar with such matters could not judge whether a straight or an order bill of lading was outstanding for the shipments, it would certainly suggest that, before treating them as straight bills of lading at the risk of entailing loss on the shipper or the initial carrier, he make inquiry for the purpose of resolving the doubt according to the readily ascertainable facts. The rights of the parties here do not of necessity turn on the effect to be given to the evidence of the frequency or infrequency of such transactions, nor on the construction placed thereon by those in the habit of dealing with such matters. There is nothing in the official classification to suggest that such transactions were not contemplated. On the contrary, it would seem from the prescribed and adopted form of the order bill of lading that the person to whose order it is issued may be some one other than the shipper. If it were contemplated that in all cases it would be to shipper's order, there would have been no purpose in leaving the blank for filling in a name after the words, "Consigned to order of." The word "shipper" or "consignor" or similar designation would likely have been in the place of the blank if it were contemplated that in all cases it would be the shipper or consignor to whose order the bills of lading would be made. We are concerned only with the question whether, as between these two carriers, the loss which the initial carrier has had to bear was caused through its own neglect in failing to duly notify appellees that these were order bills of lading, or—what here amounts to the samewhether the delivering carrier knew or by the exercise of ordinary care ought to have known that the bills of lading for these shipments were order bills specifically prohibiting delivery of the shipments without surrender of the bills of lading properly indorsed. We are of opinion that these waybills sufficiently apprised appellees that there were outstanding against these shipments order bills of lading which. should have been surrendered before delivery of the shipments. It follows that the decree of the District Court disallowing and dismissing appellant's claim should be, and it accordingly is, reversed, and the cause remanded with direction for further proceedings on the petition in accordance with the foregoing views. WILLS HOLLOWAY et al. v. COLEE et al. (Circuit Court of Appeals, Fifth Circuit. January 17, 1919.) No. 3254. 519-CONSTRUCTION-DESIGNATION OF BENEFICIARIES. A will which, after naming the wife and children of testator as equal beneficiaries of his residuary estate, provided that "the surviving consort and issue of any of my children dying before my death taking, share and share alike, the share my child would have taken if alive," held to exclude from any share a granddaughter whose mother, testator's daughter, had died many years before the will was made. Appeal from the District Court of the United States for the Southern District of Florida; Rhydon M. Call, Judge. Suit in equity by Beatrice H. Holloway and others against Louis A. Colee and others. Decree for defendants (247 Fed. 598), and complainants appeal. Affirmed. George C. Bedell, of Jacksonville, Fla., for appellants. John C. Cooper, of Jacksonville, Fla. (W. A. MacWilliams, of St. Augustine, Fla., on the brief), for appellees. Before PARDEE and WALKER. Circuit Judges, and GRUBB, District Judge. WALKER, Circuit Judge. This is an appeal from a decree which was adverse to the asserted claim of the appellant Beatrice H. Holloway that she, in her own right and as the assignee of her father, was entitled, under the will of her grandfather, James L. Colee, to a For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes share in his estate. The will was made in December, 1903, and the testator died in January, 1912. Succeeding clauses revoking former wills, naming an executor, bequeathing a gold watch to one of the testator's sons, and household furniture and utensils to his wife, the will contained the following provisions: Fifth. All the rest and residue of my estate real, personal, and mixed, in esse and in futuro, wherever the same may be at the time of my death, I devise and bequeath unto my children, Louis A. Colee, James R. Colee, Joseph B. Colee, George B. Colee, Raymond J. Colee, Arthur P. Colee, Otis M. Colee, Mamie J. Colee, Edna I. Colee, and my wife, Georgia V. Colee, share and share alike, the surviving consort and issue of any of my children dying before my death taking share and share alike the share my child would have taken if alive. Seventh. It being my desire that all of my children shall share equally in my estate, should any child of mine be born after the execution of this will or after my death, I desire that it shall share equally with my other children and my wife above named, each devisee contributing ratably to make up the share of such child. The testator was twice married, his second wife being the one mentioned in the will. The appellants' mother, who died many years before the will was made, was a daughter of the testator by his first wife, who died long before the will was made. Until the marriage of appellant, which occurred several years before the will was made, she was a member of the household of her father, who had a second wife and several children by the latter, and lived in the country about nine miles from St. Augustine. For several years during the appellant's childhood she attended school in St. Augustine, there being no school in the country to which she could be conveniently sent from her father's home. During the school terms she stayed at the home of the testator in St. Augustine. After her marriage she did not reside in or near St. Augustine, but lived with and was supported by her husband; their home being in another state. She made occasional visits to St. Augustine after her marriage. During such visits she did not. stay at the home of her grandfather, but made calls there, and occasionally took meals or spent the day with him and his family. The relations between her and her grandfather were always affectionate. So far as appears, she was never dependent on him for support, and he did not contribute to her support or education, further than by having her as an inmate of his home while she was attending school in St. Augustine. Her father was a man whose means and circumstances were such that it reasonably could have been anticipated that at his death she would inherit property worth as much as what would have been the share of her father and herself in her grandfather's estate, if they were embraced in the provisions of the fifth clause of the latter's will. The will was drawn by a lawyer to whom the testator gave instructions as to the disposition of his property he desired to make. The claim asserted is based upon the following language contained in the fifth clause of the will: "The surviving consort and issue of any of my children dying before my death taking share and share alike the share my child would have taken if alive." |