Atlantic Coast Line R. Co. v. Dahlberg Brokerage Co.

• Decision Date: 22 November 1910
• Parties: ATLANTIC COAST LINE R. CO. v. DAHLBERG BROKERAGE CO.
• Court: Alabama Supreme Court

54 So. 168

170 Ala. 617

ATLANTIC COAST LINE R. CO. v. DAHLBERG BROKERAGE CO.

Supreme Court of Alabama

November 22, 1910

Rehearing Denied Jan. 12, 1911.

Appeal from Circuit Court, Montgomery County; W. W. Pearson, Judge.

Action by Dahlberg Brokerage Company against the Atlantic Coast Line Railroad Company for delivering goods to the wrong person. Judgment for plaintiff, and defendant appeals. Affirmed.

The facts and pleadings sufficiently appear from the opinion. The following charges were refused to the defendant: (1) "The burden of proof is upon plaintiff to show that plaintiff reserved the title to the goods and the sale of them to Deans." (2) "The court charges the jury that if plaintiff, after knowing that the draft was not paid by Deans, had it presented to Deans for payment a second time, then their verdict must be for the defendant." (3) "The court charges the jury that if plaintiff, with knowledge that the defendant had delivered the goods to Deans, had the draft presented to Deans for payment, their verdict must be for the defendant." (4) "If the jury believe from the evidence that Deans bought the goods on a credit, then plaintiff had no right to recover." (5) The general affirmative charge. (6) "The jury must believe, in order to find a verdict for the plaintiff, that Deans consented to the reservation of title to the goods by the plaintiff." (8) "If the jury believe that Deans bought the goods on a credit, and that plaintiff did not reserve title to them, their verdict must be for the defendant."

John R Tyson, for appellant.

J. Lee Holloway, for appellee.

SAYRE J.

The complaint was reduced by the voluntary action of the plaintiff, and by rulings of the court not now in question to counts 6 and 7. Count 6 declared upon the wrongful delivery of plaintiff's goods by the defendant carrier to one Chas. Deans. Count 7 declared upon defendant's failure or refusal to deliver to plaintiff. The bill of lading which evidenced the contract of carriage between the parties provided that the defendant was to make delivery to "onfy" Chas. Deans. In the complaint this collocation of letters was averred to have been employed by the parties as meaning "order notify," and the court properly received in evidence the bill of lading, and along with it the testimony of witnesses, familiar with the usage obtaining in the transaction of business between shippers and carriers, by which this sign or technical collocation, not in general use, was shown to have a meaning in accordance with the averment. Mouton v. L. & N. R. R. Co., 128 Ala. 537, 29 So. 602. The direction in a bill of lading to "notify" a named person shows that such person is not intended as the consignee. Otherwise the direction would mean nothing. Moore on Carriers, 170. The meaning of the bill of lading, as explained by the testimony, was that Deans was to be notified of the arrival of the goods at destination but that they were to be delivered only to plaintiff's order. Plaintiff was both consignor and consignee. The sale was to be a sale for cash; at least, that is what the vendor understood it was to be. In pursuance of this understanding and purpose, plaintiff drew upon Deans, bill of lading attached, for the price. Deans refusing to pay, the draft and bill of lading were returned to plaintiff. Nevertheless defendant delivered the goods to Deans. The carrier delivers at its peril goods to one without a bill of lading. So far no doubt arises as to plaintiff's right to maintain the action. But it appeared that in the effort to make a sale and in the shipment of the goods plaintiff was acting as the agent of the Armstrong Packing Company under the following conditions: The Armstrong Company shipped its goods to plaintiff company for distribution in the latter's territory. Plaintiff shipped the particular goods in question, with a view of delivery to Deans, out of the Armstrong Company's stock in plaintiff's warehouse upon receipt of an order from the Armstrong Company's traveling salesman. Plaintiff company passed on the credit of proposed buyers, exercising its own judgment in filling orders and accounting to the Armstrong Company, and receiving a commission of 2 per cent. on sales made by it. On these facts the appellant contends that the Armstrong Company alone could maintain an action for the loss resulting from the delivery of the goods to Deans. A number of cases are cited in which the question was whether the carrier should respond to the consignor or consignee, but they are without influence, for here the plaintiff is both. Certainly the carrier is discharged from liability when it surrenders property, taken for transportation, to the true owner, for that is not a matter of choice. But, to justify a delivery without the order of the consignor, the carrier assumes the burden of proving that the person to whom delivery has been made was the true owner having the right of immediate possession. Moore on Carr. 156. "The rule is that the depositary is bound to redeliver or restore the chattels bailed to the bailor, and the bailor may recover the goods of his bailee without proving his right of property in them." Riddle v. Blair, 148 Ala. 461, 42 So. 560. This rule applies to the common carrier, and the carrier must deliver according to the shipper's order or the terms of the bill of lading, unless the true owner has interposed and asserted his rights. Moore on Carr., supra; Hutch. on Carr., § 750. This disposes of a number of the assignments of error in accordance with the rulings of the trial court.

In count 6 "plaintiff avers that it drew a draft on May 21 1909, through the Montgomery Bank & Trust Company, with said bill of lading thereto attached, and sent the said draft with said bill of lading attached to the People's Bank at Troy, Ala., for collection." Then follows an averment that Deans failed to pay, and that defendant delivered the goods to him notwithstanding he had so failed and had not the bill of lading. The evidence was that the plaintiff drew the draft in the name of the Armstrong Packing Company. It is insisted that this constituted a material and fatal variance. The purpose of...