Erskine Williams Lumber Co., Inc. v. John I. Hay & Co., Inc.

• Decision Date: 15 April 1935
• Docket Number: 14798
• Citation: 160 So. 650
• Parties: ERSKINE WILLIAMS LUMBER CO., Inc., v. JOHN I. HAY & CO., Inc., et al
• Court: Court of Appeal of Louisiana — District of US

160 So. 650

ERSKINE WILLIAMS LUMBER CO., Inc., v. JOHN I. HAY & CO., Inc., et al

No. 14798

Court of Appeal of Louisiana, Orleans.

April 15, 1935

Porteous, Johnson & Humphrey and F. Carter Johnson, Jr., all of New Orleans, for appellant Erskine Williams Lumber Co Inc.

Lemle Moreno & Lemle, of New Orleans, for appellant Illinois Cent R. Co.

Hopkins & Talbot and Jas. W. Hopkins, all of New Orleans, for appellee John I. Hay & Co., Inc.

OPINION

JANVIER, Judge.

Erskine Williams Lumber Company, Inc., sues John I. Hay & Co., Inc., and Illinois Central Railroad Company, seeking solidary judgment in the sum of $ 1,824.50, alleging loss of the value of two cars of lumber because of the misdelivery thereof by the railroad company to Hay & Co. The Illinois Central Railroad Company denies that there was a misdelivery, and avers that, so far as its officials and employees could ascertain, John I. Hay & Co. was legally entitled to the delivery of the lumber. The railroad company also charges that the plaintiff company is estopped to claim that there was a misdelivery. In the alternative, and in the event that it should appear that the lumber should not have been delivered to Hay & Co., the railroad company, through a call in warranty, charges Hay & Co. with responsibility for the said delivery through misrepresentation, and seeks judgment as warranty against that company for such amount as it may be compelled to pay to plaintiff. Hay & Co. denies all liability, contending that the delivery was properly made in accordance with the well-established custom existing between the plaintiff company and Hay & Co. It also pleads the prescription of one year, alleging that if there is any liability it results from tort.

The evidence shows that for some time the Williams Company had been selling lumber for export to J. F. McIntyre & Co., and that the lumber, in all instances, had been shipped by the Williams Company, plaintiff, from interior points of origin under what are known as "straight," or nonnegotiable bills of lading, and that all such shipments had been consigned from the Williams Company to itself, "C/O John I. Hay & Company," at New Orleans. In all previous cases the shipments had been delivered to and accepted by John I. Hay & Co. and had been delivered by that company on the order of the McIntyre Company. The said McIntyre Company had, on each previous instance, then shipped the lumber to the foreign purchaser, and, as payment to the Williams Company, had sent to that company a draft on the foreign purchaser for the price, and had attached to the draft the negotiable foreign, or ocean, bill of lading. In each prior case the Williams Company had found no fault with this method of handling, and Hay & Co. contends that the two cars involved here were handled in that same manner.

The matter was tried in Division E of the civil district court for the parish of Orleans, and judgment was rendered for the two defendants; the suit of plaintiff being dismissed at its cost. The plaintiff appealed from the judgment dismissing the suit, and the railroad company also appealed because of the fact that necessarily its call in warranty had also been dismissed and it felt that it would be necessary to protect itself by an appeal from that part of the judgment which dismissed its call in warranty, in the event of a reversal of the judgment on the main demand of the Williams Company.

There were two shipments involved in this matter, both having originated in the state of Arkansas.

It is well recognized that the legal rights of parties growing out of interstate shipments are governed by the statutes of the United States and the decisions of the federal courts with reference thereto. See Adams Express Co. v. Croninger, 226 U.S. 491, 33 S.Ct. 148, 57 L.Ed. 314, 44 L.R.A. 257; Cincinnati, N. O. & Tex. Pac. Ry. Co. v. Rankin, 241 U.S. 319, 36 S.Ct. 555, 60 L.Ed. 1022, L. R.A.1917A, 265; American Railway Express Co. v. Levee, 263 U.S. 19, 44 S.Ct. 11, 68 L.Ed. 140. The two carloads of lumber were shipped under what is known as "straight" or nonnegotiable bills of lading. They were consigned to "Erskine Williams Lumber Company, C/O John I. Hay & Company," at New Orleans. When they arrived at New Orleans they were delivered on the order of John I. Hay & Co.

There can be no question that rights arising out of straight or nonnegotiable bills of lading are essentially different from those arising from "shipper's order," or negotiable bills of lading.

Under the Federal Bill of Lading Act (section 1 et seq. USCA, title 49, c. 4, 81 et seq.) a ""straight" bill of lading is defined as ""a bill in which it is stated that the goods are consigned or destined to a specified person." Section 2 (49 USCA 82). The shipments here were consigned to a specified definite ""person," and the bills of lading were, therefore, ""straight" bills, as above defined. On the face of the bills themselves also appeared the designation: ""Uniform Straight Bill of Lading OriginalNot Negotiable."

The federal bill of lading act heretofore referred to provides that where goods are shipped under a straight bill of lading delivery may be made to the consignee named in the bill. It was therefore not necessary that the carrier require the surrender of the bills of lading before delivery of the shipments. This rule has been recognized in the state of Louisiana as well as in the federal courts. See Terracina v. Yazoo & M. V.R. Co. (La.App.) 152 So. 771. In fact, the rule is recognized universally in all jurisdictions in this country. In Edelstone v. Schimmel, 233 Mass. 45, 123 N.E. 333, 334, the court said: "It is the general rule that a nonnegotiable contract of shipment by a common carrier is discharged by delivery to the consignee without the surrender or production of the bill of lading." In St. John Bros. Co. v. Falkson, 237 Mass. 399, 130 N.E. 51, 53, appears the following: "The delivery of the nonnegotiable bill of lading by the plaintiff to the defendant and its retention by the latter is not conclusive. Possession of such a bill of lading is not of much significance as to the title of the property. "The carrier rightly could deliver to the consignee and discharge its liability without surrender of such a bill of lading." In Utley v. Lehigh Valley R. Co., 292 Pa. 251, 141 A. 53, we find it stated that: "The carrier, on such bill, may deliver on the order of the consignee, and it is under no duty to the latter or the consignor to demand the bill of lading. (3)5C A carrier is protected in delivering goods to a...