Alabama Great Southern R. Co. v. Com. Cotton Mfg. Co.

• Decision Date: 01 February 1906
• Citation: 42 So. 406,146 Ala. 388
• Parties: ALABAMA GREAT SOUTHERN R. CO. v. COMMONWEALTH COTTON MFG. CO.
• Court: Alabama Supreme Court

42 So. 406

146 Ala. 388

ALABAMA GREAT SOUTHERN R. CO. v. COMMONWEALTH COTTON MFG. CO.

Supreme Court of Alabama

February 1, 1906

Rehearing Denied Dec. 5, 1906.

Appeal from City Court of Birmingham; C. W. Ferguson, Judge.

"To be officially reported."

Action by the Commonwealth Cotton Manufacturing Company against the Alabama Great Southern Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.

A. G &. E. D. Smith, for appellant.

John B Weakley and Cabaniss & Weakley, for appellee.

SIMPSON J.

This is an action by the consignee of 50 bales of cotton, which were shipped by a broker in Birmingham, Ala., from whom the plaintiff (appellee) had bought the cotton, to the appellee in North Carolina; the bill of lading having been sent to appellee, with draft attached, which was paid. It is acknowledged that the cotton actually received by the carrier was delivered; the damages being claimed because the bill of lading stated the weight of the cotton to be 25,637 pounds when, in fact, it weighed only 14,305 pounds. It is agreed that the railroad company's agent did not weigh the cotton when it was received, but accepted the weights as set out in the bill of lading by the shipper, and that the "railroad company had no knowledge or notice that the weight of the cotton was not as described in the bill of lading, and that said company issued said bill of lading upon a certificate furnished it by the shippers from the compress company, stating that the shippers had delivered to said compress company for shipment 50 bales of cotton of the weight of 25,637 pounds." Said cotton was delivered to the carrier by the compress company in a sealed car, and the particular weight shown in the exhibit was made out by the shipper, and not by the carrier's agent. The bill of lading contained the words (after acknowledgment of the receipt of property described below) "Contents and condition of contents of packages unknown."

The general principle is, in so far as a bill of lading is a receipt, it is "only prima facie evidence that the carrier has received the goods, or that it has received the quantity named; and, like all mere receipts, they may be shown to have been given by mistake or not to speak the truth." Hutchinson on Carriers (2d Ed.) § 122. The practice among carriers or their agents of signing bills of lading before the actual receipt of the goods has given rise to a considerable amount of litigation; and, while there are a few cases to the contrary, it is fully settled now, by the great weight of authority that such bills of lading, whether in the hands of the original party or of an assignee, do not create any liability against the carrier. The theory of these cases is that the agent of the carrier has no authority to give a bill of lading until the goods are received for transportation, and the party who takes such a bill of lading has full knowledge of the want of authority. Hutchinson on Carriers (2d Ed.) § 123; Pollard v. Vinton, 105 U.S 7, 26 L.

Ed. 998; Friedlander v. T. & P. R. R. Co., 130 U.S. 416, 9 S.Ct. 570, 32 L.Ed. 991.

In order to protect the holders of such bills of lading our statute was passed. Code 1896, § 4223. And an important question to be decided in this case is whether or not such statute fixes the liability of the carrier. The decisions of the English courts, in regard to the similar act (St. 18 & 19 Vict. c. 3, § 3), are not controlling, as said act provided that such bills were conclusive "as against the master or person signing the same," and the decisions that the act does not apply are based upon the very technical point that only the person actually signing the bill of lading, to wit, the master of the vessel and not the owner, is bound by it. Blanchard v. Powell, 9 Law Rep. Court of Ex. 74; Jessel v. Bath, 2 Law Rep. Court of Ex. 267; Brown v. P. D. & S. C. Co., 10 Law Rep. Court of C. P. 562. This section of our Code came before our own court in a case in which the agent of the railroad issued a bill of lading to a fictitious firm for goods never received, and indorsed it in the name of said fictitious firm. While the court held that ordinarily the railroad company would be liable to a bona fide indorsee, by virtue of the statute only, yet in this case, from the fact that the party to whom the bill of lading was issued was fictitious, the indorsee should have informed himself as to whether there was such a firm, and, failing to do so, could not claim the protection of the act. Jasper Tr. Co. v. K. C., M. & B. R. R. Co., 99 Ala. 416, 14 So. 546, 42 Am. St. Rep. 75. The court affirms the doctrine of the nonliability of the railroad company without the aid of the statute, either to the original holder or to the indorsee of the bill, and states that "its whole intention was to punish and prevent the giving of a bill of lading when the property or thing was not in fact received for transportation. * * * It was enacted to prevent fraud, sometimes perpetrated through spurious bills of lading. * * * The statute must not be construed as altering the common law, or as making any inovation therein further than the words import." Jasper Tr. Co. v. K. C., M. & B. R. R. Co., at pages 422, 423 of 99 Ala., pages 548, 549 of 14 South. (12 Am. St. Rep. 75). This view of the statute was also adopted by this court in the case of Thompson v. Ala. Midland R. R. Co., 122 Ala. 378, 24 So. 931. Taking, then, the history of this statute, its clear purpose, so forcibly expressed by Stone, C.J., as well as its language, we hold that it provides only for those cases where the carrier, "not having received things or property for carriage, shall give or issue a bill of lading, or receipt, as if such things or property had been received," or giving duplicates, etc.

In the case now before the court the agreement of parties as to the facts shows that there was no issuing of a false bill of lading, and no fraud practiced; that the 50 bales of cotton were, in fact, received and delivered, but simply did not weight as much as the bill of lading stated; that the railroad company did not know of the deficiency, and the fraud was perpetrated by the consignor. from whom the consignee purchased the cotton. In giving this bill of lading the agent of the carrier acted within the scope of his duties; the goods purporting to be what the bill of lading stated were, in fact, received. The statute then does not apply, and we must look to the general principles of the law in order to determine the liability of the carrier. This interpretation of the statute is in accordance with that placed upon a similar statute by the Supreme Court of New York in the case of Dean v. Driggs (N. Y.) 33 N.E. 326, 19 L. R. A. 303, 309, 33 Am. St. Rep. 721.

Counsel for appellee insist that, notwithstanding the general rule in regard to cases where the goods were not delivered at all yet, where there was, as in this case, a delivery of the goods, but not of the quantity named, the carrier is estopped from controverting the statement of quantity in the bill of lading as to an innocent holder of the...