Kaufman v. Seaboard Air Line Ry.

• Decision Date: 15 January 1912
• Docket Number: 3,260.
• Citation: 73 S.E. 592,10 Ga.App. 248
• Parties: KAUFMAN v. SEABOARD AIR LINE RY. et al.
• Court: Georgia Court of Appeals

73 S.E. 592

10 Ga.App. 248

KAUFMAN v. SEABOARD AIR LINE RY. et al.

No. 3,260.

Court of Appeals of Georgia

January 15, 1912

Syllabus by the Court.

The owner of certain goods delivered them, through his agents, to a common carrier for transportation, and the agents took bill of lading therefor in their own names. When the goods arrived at destination, the agents through whom the shipment had been made refused to deliver the bill of lading to the owner of the goods; but he demanded, nevertheless, that the carrier make delivery to him. The carrier refused to deliver to him unless he would produce the bill of lading. Held, that the carrier's refusal to deliver, under the circumstances stated, did not constitute a conversion, and that the owner of the goods could not maintain bail trover against the carrier for them.

If the plaintiff in bail trover replevies the property in controversy, on the defendant's failure to do so, and at the trial of the case suffers nonsuit, the defendant may enter up judgment against the plaintiff and the sureties on his bond for the value of the property; and if the defendant is content with the value stated in the plaintiff's affidavit to obtain bail, no further proof or assessment of value is necessary.

The principle stated in the immediately preceding headnote is applicable, notwithstanding the defendant may not claim any title to the property, and only holds possession for some special purpose or under some limited right or title. The money recovered by the defendant through judgment is held for the benefit of all persons having lawful claims to or upon the property, accordingly as their respective interests may appear.

Error from City Court of Atlanta; H. M. Reid, Judge.

Action by E. H. Kaufman against the Seaboard Air Line Railway and others. Judgment for defendants, and plaintiff brings error. Affirmed.

Jos. W. & Jno. D. Humphries and Wm. F. Phillips, for plaintiff in error.

King Spalding & Underwood, for defendants in error.

POWELL J. (after stating the facts as above).

1. "The gist of the action of trover is the conversion of the plaintiff's property by the defendant; that is to say, that the defendant wrongfully deprived the plaintiff of possession." Bell v. Ober, 111 Ga. 668, 672, 36 S.E. 904, 905. That in the present case the railway company acquired the possession of the goods lawfully is conceded. The goods were delivered to it in regular course by the plaintiff's own agents. However, a conversion may consist in retaining possession lawfully acquired after the right to retain it has ended; and this is what the plaintiff contends happened in this case. So the plaintiff's right to recover depends upon whether the defendant company, as a common carrier, was justified in retaining the goods and in enforcing its demand for a production of the bill of lading as a condition precedent to delivery, against his demand that the goods be delivered to him on his claim that he was the true owner, notwithstanding the bill of lading was outstanding in the name of another. This point is settled adversely to the plaintiff in the case of Sellers v Savannah, Florida & Western Ry. Co., 123 Ga. 386, 51 S.E. 398, where it is held that, "inasmuch as the law imposes liability upon a common carrier when a delivery of freight is made by mistake to a person not entitled to receive the same, it is the right of the carrier to call upon an unknown person claiming a shipment to identify himself and establish his claim thereto; and where a bill of lading covering the shipment has been issued, the carrier may demand its production as a condition precedent to making delivery."

2. In bail trover, where the defendant fails or refuses to replevy and keep the possession of the goods, the plaintiff has the option of doing so. Civ. Code 1910, § 5152. However, if the plaintiff thus causes the possession of the property to be transferred from the defendant to him, he stands chargeable as for a conversion of it,...