Louisville & N.R. Co. v. B.F. Roden Grocery Co.

• Decision Date: 10 May 1923
• Docket Number: 6 Div. 858.
• Citation: 209 Ala. 694,96 So. 912
• Court: Alabama Supreme Court
• Parties: LOUISVILLE & N. R. CO. v. B. F. RODEN GROCERY CO.

96 So. 912

209 Ala. 694

LOUISVILLE & N. R. CO. v. B. F. RODEN GROCERY CO.

6 Div. 858.

Supreme Court of Alabama

May 10, 1923

Rehearing Denied June 28, 1923.

Appeal from Circuit Court, Jefferson County; J. Q. Smith, Judge.

Action for damages by the B. F. Roden Grocery Company against the Louisville & Nashville Railroad Company, for failure to deliver certain goods. From a judgment for plaintiff defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6. Affirmed.

Tillman Bradley & Baldwin and John S. Coleman, all of Birmingham, for appellant.

Black &amp Harris, of Birmingham, for appellee.

MILLER J.

This is a suit by B. F. Roden Grocery Company, a corporation, against the Louisville & Nashville Railroad Company, a body corporate, for failing to deliver a carload of lime, received by the defendant from the Brierfield Lumber Company at Wilmay, Ala., consigned to McComb & Magnolia Light & Railway Company, at Fernwood, Miss. The plaintiff claims and avers that the carload of lime was transferred and assigned to it by the consignor during transit for a valuable consideration. The case was tried by the court without a jury. Judgment was rendered by the court in favor of plaintiff and against the defendant, from which judgment the defendant prosecutes this appeal.

There are three counts in the complaint:

Count 1 is in Code form (No. 15, p. 1197 Code 1907) , except it avers the car of lime was in cooperage to be delivered to McComb & Magnolia Light & Railway Company, and it avers the defendant failed to deliver it to the consignee. It also avers the consignor for a valuable consideration transferred the car of lime in cooperage while in transit to plaintiff. This count states a cause of action, and is not subject to the demurrers assigned to it. Form 15, p. 1197, Code 1907.

Count 2 is similar to count 1, except it also avers the carload of lime in cooperage was while in transit for valuable consideration transferred and assigned to and became the property of the plaintiff, and it also avers it was not delivered to the consignee nor to the plaintiff.

Count 3 is the same as count 2, except it also avers that, after the car of lime was delivered to defendant, consigned to the said consignee, the consignee countermanded the order, and contended it did not order the lime from the consignor, and the consignor sold and transferred the shipment of lime to plaintiff, it becoming the property of plaintiff, but defendant negligently failed to deliver the car of lime to the consignee or to the plaintiff.

These counts, 2 and 3, are substantially the same as count 1, except plaintiff assumes in them the additional burden of proving the car of lime was not delivered to it or the consignee, of which the defendant appellant cannot complain. It assumes the burden of proving both.

The defendant pleaded in short by consent the general issue with leave to give in evidence any matter which, if well pleaded, would be admissible in defense of the action.

The court did not err in allowing plaintiff to introduce in evidence a written transfer and assignment of Brierfield Lumber Company, the consignor, to the plaintiff of an invoice of this lime, as follows:

"Brierfield Lumber Company,

"Successors to Bowden Lime Company, Inc.

July 27, 1917.

"Sold to McComb & Magnolia Light & Ry. Co., McComb, Miss. Clark Building Material Co.

"Shipped to McComb & Magnolia Light & Ry. Co., Fernwood, Miss. Chg. McComb & Magnolia Light & Ry. Co. 7-27-17 B.C.T. Car. No. N. S. 21256.

200 in cooperage $1.23 ... $246 00

72 00

--------

$174 00"

While this in itself conveyed and transferred no title to the lime to plaintiff, still it was a circumstance for the court to consider in determining, from all the evidence, if the title to the lime was transferred to plaintiff by Brierfield Lumber Company. George R. Moore, president of the Brierfield Lumber Company, and witness for defendant, testified that the car of lime was assigned to plaintiff, and that, after his company received a bill of lading for this lime, the above-quoted invoice was transferred and forwarded with the bill of lading to the plaintiff. There was evidence introduced by the plaintiff tending to show there was an assignment on and of this bill of lading to plaintiff by the Brierfield Lumber Company. There was also evidence that Wilmay, Ala., was a nonagent stop, and a conductor's waybill was issued for the car of lime, and no bill of lading was issued for it. There is also evidence showing, or from which the court could fairly and reasonably infer, that all title of Brierfield Lumber Company in the lime was transferred to the plaintiff, that the title to the lime was in plaintiff, and that the consignee countermanded the order for the lime while it was in transit.

In the case of Ala. & Tenn. R. R. Co. v. Kidd, 35 Ala. 209, the rule is thus stated:

"It must be remembered that, in contracts for the carriage of goods, the obligation is not all on one side. It is as much a part of the contract, that the owner or consignee shall be ready at the place of destination to receive the goods when they arrive, or within a reasonable time thereafter, as that the carrier shall transport and deliver them. If, however, the consignee is dead, or absent, or fails to receive the goods, the carrier is not justified in abandoning them; unless, perhaps (for even this is by no means clear) where the consignee, after actual notice of the arrival of the goods, refuses to receive them. See Fisk v. Newton, 1 Denio, 45, 43 Am. Dec. 649; Smith v. Nashua R. R., 27 N.H. [2 Foster] 86, 59 Am. Dec. 364; Hemphill v. Cheine, 6 Watts & S. 62; Pierce, R. R. 448, 449; 1 Parsons, Cont. 660. On the contrary, it is his duty to secure them for the owner. He may, if he so elect, keep them as a bailee on deposit; or, if he has come under no obligation, either by the terms of his agreement, or the course of business, to hold the goods as bailee, he has the right to leave them in store with some responsible third person, and thus discharge himself from all further liability."

The evidence material on this point is thus stated in brief by appellant:

"The shipment was delivered at Fernwood, Miss., on or about August 11 or 12, 1917, and tendered to the consignee, McComb & Magnolia Light & Railway Company, but shipment was refused by the consignee. The agent of the Fernwood & Gulf Railroad Company was then instructed by Jas. M. Clark, of the Clark Building & Material Company, to deliver the car containing the shipment to the I. C. Railroad Company, billed to Dobbs & Wetmore, Magnolia, Miss. This the Fernwood & Gulf Railroad Company did, and the shipment was subsequently received by Dobbs & Wetmore at Magnolia, Miss., and the amount of $75, was remitted by that concern to the Clark Building & Material Company at Jackson, Mississippi.

"According to the evidence for the plaintiff, the Clark Building & Material Company were not the agents of the Brierfield Lumber Company nor of the plaintiff, and had no authority to order the shipment reconsigned after the refusal of same by the consignee, McComb & Magnolia Light & Railway Company."

No payment for the lime has ever been made to plaintiff or Brierfield Lumber Company. The consignee refused to receive the lime. The carrier did not secure the lime then for the owner. It did not keep the lime on deposit as bailee or as warehouseman. It did not store it with some responsible third person, but, without authority from the consignor or consignee or plaintiff, it delivered the car of lime to the I. C. Railroad Company to be delivered by it to Dobbs & Wetmore at Magnolia, Miss., on the order of Clark. There is evidence that Clark had no authority from plaintiff or from Brierfield Lumber Company to order the lime to be so delivered by this carrier to the I. C. R. Company for Dobbs & Wetmore, or any one else. When the consignee refused to receive the lime the carrier did not abandon it, and we need not decide whether it would have been justified under the evidence in so doing.

It appears, and we hold, the defendant's connecting carrier acted at its peril, for which the defendant is liable to the owner of the lime, the plaintiff, when it delivered the same to the I. C. R. Company for Dobbs & Wetmore. This was a wrong delivery or disposition of the lime by the defendant. There was evidence that the order for it had been countermanded by the consignee before the car arrived; when it arrived the consignee refused to receive...