Moss Lumber Co. v. Michigan Cent. R. Co.

• Decision Date: 25 April 1929
• Docket Number: 2 Div. 943.
• Parties: MOSS LUMBER CO. v. MICHIGAN CENT. R. CO.
• Court: Alabama Supreme Court

123 So. 90

219 Ala. 593

MOSS LUMBER CO. v. MICHIGAN CENT. R. CO.

2 Div. 943.

Supreme Court of Alabama

April 25, 1929

As Modified on Denial of Rehearing June 13, 1929.

Petition for Certiorari to Court of Appeals.

Action by the Michigan Central Railroad Company against the Moss Lumber Company, a partnership, and the individual members thereof. Judgment for plaintiff was reversed and rendered in Court of Appeals (123 So. 89), and plaintiff petitions for certiorari. Writ awarded, and judgment of Court of Appeals reversed.

Bonner & Miller, of Camden, for appellant.

S. C Godbold, of Camden, for appellee.

FOSTER J.

It will be noted that the agreed statement of facts does not speak of a bill of lading, but refers to appellant as the shipper. In the absence of an agreement to the contrary, it seems to be well settled that the shipper assumes the obligation to pay the freight charges whether the bill of lading so requires or not, and this obligation is ordinarily a primary one, and even though the bill of lading contains a provision imposing liability upon the consignee, "for the shipper is presumably the consignor. The transportation ordered by him is presumably on his own behalf; and a promise by him to pay therefor is inferred (that is, implied in fact), as a promise to pay for goods is implied when one orders them from a dealer." But it may be shown that the shipper was not acting on his own behalf, and that this was known to the carrier, and "that the parties intended not only that the consignee should assume an obligation to pay the freight charges, but that the shipper should not assume any liability whatsoever therefor; or that he should assume only a secondary liability." Louisville & N. R. Co. v Central Iron & Coal Co., 265 U. 59, 44 S.Ct. 441, 68 L.Ed. 900; Faulk & Co. v. Chicago, I. & L. Rwy. Co., 21 Ala. App. 617, 111 So. 196; Id., 215 Ala. 488, 111 So 199. In the annotations to 49 USCA p. 185 et seq., there are many citations to the effect that, if the shipper is to be relieved, there must be a contract with the carrier to that effect. As pointed out, however, in the Central Iron & Coal Co. Case, supra, and the Faulk Case, supra, such release of liability may be inferred from the facts, if they justify such inference. It is then a question of fact to determine whether the shipper is merely acting as agent for the consignee known to the carrier, and that he assumes no liability for freight.

It is well settled by the foregoing cases, and many others, that though the goods are only to be delivered upon payment by the consignee of the freight charges, the shipper is not relieved on account of a delivery by the carrier of the goods to the consignee without collecting the charges, though credit is voluntarily extended to the consignee. This right to collect from the consignor can only be barred by limitations or contract. Bankruptcy of the consignee does not relieve the shipper. 4 R. C. L. 857; Cleveland, G., C. & St. L. Rwy Co. v. So. Coal & Coke Co., 147 Tenn. 433, 248 S.W. 297; Hutchinson on Carriers (3d Ed.) 900, § 810; Wells Fargo & Co. v. Cuneo (D. C.) 241 F. 727; Western & A. R. Co. v. Legg, 32 Ga.App. 368, 123 S.E. 31; Cent. of Ga. R. Co. v. O'Neill Mfg. Co., 19 Ga.App. 490, 91 S.E. 877; Seaboard A. L. Rwy. Co. v. Luke, 19 Ga.App. 100, 90 S.E. 1041; Seaboard A. L. Rwy. Co. v. Montgomery, 28 Ga.App. 639, 112 S.E. 652; Gulf, M. & N. R. Co. v. Riverside Brick & Mfg. Co., 141 Miss. 505, 107 So. 193; New York Cent. R. Co. v. Warren Ross Lbr. Co., 234 N.Y. 261, 137 N.E. 324, 24 A. L. R. 1160; Chicago Junc. Rwy. Co. v. Duluth Log Co., 161 Minn. 466, 202 N.W. 24. The authorities to this effect are too numerous to note them all, but a large number of them are collected in 49 USCA p. 186 et seq.

It is the duty of the shipper at the time of shipment to disclose to the carrier that he is acting for another in making the shipment, if such be the fact. If he does not, he cannot escape liability for freight unless his contract with the carrier has that effect. Cincinnati, N. O. & T. P. Rwy. Co. v. Vredenburgh Saw Mill Co., 13 Ala. App. 442, 69 So. 228, and authorities supra.

The fact that the consignee is liable when he accepts the shipment is no reason why the presumed liability of...