Gibson v. Inman Packet Co.

• Decision Date: 23 February 1914
• Parties: GIBSON v. INMAN PACKET COMPANY
• Court: Arkansas Supreme Court

164 S.W. 280

111 Ark. 521

GIBSON v. INMAN PACKET COMPANY

Supreme Court of Arkansas

February 23, 1914

Appeal from Lawrence Circuit Court, Eastern District; R. E. Jeffery Judge; reversed.

Judgment reversed and cause remanded.

W. P Smith, for appellant.

This case comes within the exception to the general rule that delivery to the carrier is delivery to the consignee, viz:

Where there is something remaining to be done in order to complete the sale, the title to the property remains in the vendor and where the vendor undertakes to make delivery at a distant point, he assumes the risk of the carriage, and the title to the property will not pass until delivery is actually made. 32 Md. 344; 3 Am. Rep. 177-180; 103 Ala. 671; 49 Am. St. Rep. 60; 56 N.J.L. 617; 26 Am. St. Rep. 441; 6 Clark & F., 600, 619-621; 24 P. 989; 79 Ark. 353.

A. S. Irby and Ira J. Mack, for appellee.

1. Where a motion for new trial was overruled and an appeal granted on the 19th day of October, 1912, and 120 days allowed in which to file a bill of exceptions, and on the 4th day of September, 1913, "the court, after carefully examining the above transcript or skeleton bill of exceptions with the evidence completed by the stenographer and inserted by the clerk, doth approve the same, " etc., the purported bill of exceptions comes too late, and is not properly a part of the record. The judgment should be affirmed. 42 Ark. 488; 91 Ark. 566; 99 Ark. 97; 93 Ark. 316; 101 Ark. 439; 102 Ark. 439; 95 Ark. 331; 100 Ark. 246.

2. It is the settled law of this State that delivery of goods to a common carrier in the usual course of business is in effect a delivery to the consignee. 91 Ark. 422; 90 Ark. 161; 78 Ark. 123; 105 Ark. 53; 79 Ark. 456.

3. The difference between the price agreed to be paid by Wooten-Hornor Cotton Company and the net sum received by appellant after the cotton was sold by the commission merchants at Memphis, is not the correct measure of the damages. The true measure of damages is the difference in the price at Newport on the day it was received there and what the market value of it would have been if it was not wet. 6 Cyc. 531.

Before appellant could recover from the carrier damages based upon the contract price, he must have given notice to the carrier at the time of making the shipment, or at some time after the shipment was received, so that the carrier could act in accordance with the special arrangement. A carrier will not be bound to do a special thing with reference to a shipment unless previously apprised of the special undertaking. 54 Ark. 24; 46 Ark. 485; 104 Ark. 215.

OPINION

MCCULLOCH, C. J.

This is an action instituted by plaintiff, John K. Gibson, against F. L. Inman, who is operating a steamboat under the name of Inman Packet Company, to recover on account of injuries to a consignment of sixty-five bales of cotton delivered to defendant for transportation from Lauratown, Arkansas, to Newport, Arkansas.

It is alleged in the complaint that servants of the defendant, in loading the cotton from the bank on to the boat, rolled it into the river and that it became water-soaked to the extent that it was seriously depreciated in value and was rejected by the consignee at Newport with whom plaintiff had contracted for its sale.

The Chicago, Rock Island & Pacific Railway Company was made a party defendant on account of the fact that it was a connecting carrier; but the court sustained a motion to quash service of summons as to that defendant and dismissed the complaint. That feature of the case has passed out.

Defendant Inman filed an answer denying all the allegations of the complaint with reference to the charge of negligence and the injury to the cotton, and also as to the amount of damages.

The case was tried before a jury, but the court, at the conclusion of the introduction of testimony, gave a peremptory instruction in favor of the defendant. This was done upon the theory that the plaintiff had parted with the title to the cotton by delivering it to the common carrier and consigning it to the purchaser at Newport and that he, therefore, had no right of action to recover damages.

Plaintiff testified that, before he shipped the cotton, he entered into a contract with the Wooten-Hornor Cotton Company, of Newport, for the sale of the cotton at a stipulated price; that he shipped it on defendant's boat, consigned to Wooten-Hornor Cotton Company, and received a bill of lading, which he attached to a draft on the consignee for the stipulated price of the cotton. The draft, with bill of lading attached, reached Newport before the arrival of the cotton, and the consignee paid the draft, but, when the cotton arrived, refused to accept it on account of its damaged condition and depreciated value. The consignee immediately notified plaintiff, who went to Newport, and upon investigation found that the rejection by consignee was well founded, and he returned to the latter the amount of the draft which had been paid, and took up the bill of lading.

Defendant relies upon the principle announced by this court that " the delivery of goods to a common carrier, when made in pursuance of an order to ship, is in effect a delivery to the consignee," and that the consignor has no right of action for the loss of the goods or injury thereto. Roberts Cotton Oil Co. v. Grady, 105 Ark. 53, 150 S.W. 150, and other cases cited therein.

While that principle is well settled in this State and elsewhere, it is not one of unvarying application, for the rule had its origin in the theory that the parties, by such delivery, intended to pass title to the property, but where the contrary intention is shown, the rule does not apply. This distinction is clearly recognized in the case cited above as well as in other decisions of this court. Garner v. St. Louis, I. M. & S. Ry. Co., 79 Ark. 353, 96 S.W. 187. Plaintiff testified that his contract with the Wooten-Hornor Cotton Company for the sale of the cotton embraced a condition that the cotton was "to be delivered at Newport in merchantable shape" and that the purchaser should have the right to reject the cotton if it was not in such condition upon arrival at the place of delivery. The contract was established by oral testimony, but this violated no rule of evidence, for the written bill of lading did not constitute the evidence of the contract between plaintiff and the consignee. That contract could be established by any other competent testimony, written or oral, and when established it shows that the title to the property remained in the plaintiff until delivery in merchantable condition at the point of destination. The evidence shows that the cotton was not in merchantable condition on account of the damage negligently caused by defendant and that the consignee had the right to reject it on that account.

The application of the law on this subject is fully stated in the following decisions cited on the plaintiff's brief: Magruder v. Gage, 33 Md. 344; Capehart v. Furman, 103 Ala. 671, 16 So. 627; McNeil v. Brau, 56 N.J.L. 617; Rosenthal v. Kahn, 19 Ore. 571, 24 P. 989.

The New Jersey court, in the case cited above, stated the rule as follows:

" It is sometimes stated as a general rule that delivery to the carrier is delivery to the consignee, and that the goods are to be carried to their destination at his risk, but an examination of the decisions to that effect will show that this doctrine prevails only where the contract of sale as between the consignor and the consignee was concluded at the place of shipment, and the undertaking to ship was collateral to the contract of sale; it will also be found that the rule uniformly adopted in the line of decisions is that the risk of loss and transportation depends upon the nature of the transaction, the terms of the contract and the intention of the parties." McNeil, v. Brau, supra.

The Maryland court stated the rule as follows:

...