Norfolk Southern R. Co. v. Armfield Co.

• Decision Date: 29 April 1925
• Docket Number: 285.
• Parties: NORFOLK S. R. CO. v. ARMFIELD CO.
• Court: North Carolina Supreme Court

127 S.E. 557

189 N.C. 581

NORFOLK S. R. CO. v. ARMFIELD CO.

No. 285.

Supreme Court of North Carolina

April 29, 1925

Appeal from Superior Court, Cumberland County; Calvert, Judge.

Action by the Norfolk Southern Railroad Company against the Armfield Company. Judgment for defendant, and plaintiff appeals. New trial.

Shipment from West Nashville, Tenn., to Fayetteville, N.C., held to constitute interstate commerce.

His honor instructed the jury upon the evidence to answer the issues as they appear of record:

(1) Was the shipment of oats described in the complaint transported from Nashville, Tenn., to Fayetteville, N. C on an order notify bill of lading? Answer: Yes.

(2) Was the shipment of oats described in the bill of lading delivered by the agent of the Norfolk Southern Railroad Company (the ultimate carrier to destination) to the defendant Armfield Company, at Fayetteville, N. C., without requiring the surrender of the bill of lading? Answer: Yes.

(3) Is the defendant, Armfield Company, indebted to plaintiff as alleged in the complaint, and, if so, in what sum? Answer: Nothing.

The plaintiff appealed from a judgment in favor of the defendant.

W. B Rodman, of Norfolk, Va., and Robinson & Robinson, of Fayetteville, for appellant.

Cook & Cook and Nimocks & Nimocks, all of Fayetteville, for appellee.

ADAMS J.

This action was brought to recover the value of a car load of oats shipped from West Nashville, Tenn., to Fayetteville, N. C and delivered by the plaintiff to the defendant, the Armfield Company, without requiring the production of the bill of lading. The defendant gave its order to D. H. Dixon, a wholesale distributor in Goldsboro. Thereafter, on February 2, 1923, presumably upon Dixon's order, the Tennessee-Oklahoma Grain Company put 300 sacks of oats in a car at West Nashville and received from the Nashville Chattanooga & St. Louis Railway Company a bill of lading which provided:

"The surrender of this original order bill of lading properly indorsed shall be required before the delivery of the property."

On the same day (February 2) the grain company drew a sight draft on D. H. Dixon in the sum of $1,000.65 (the purchase price of the oats), in favor of the Wayne National Bank of Goldsboro, and, attaching the indorsed bill of lading for delivery upon payment of the draft, mailed the papers to the bank. The bank received the papers on February 5, held them until April 12, and then returned them to the shipper. The draft was never paid. On January 26, 1923, D. H. Dixon deposited in the Wayne National Bank his draft on the Armfield Company for $1,091.10, for which the bank gave him credit. The draft was forwarded to the Cumberland Savings & Trust Company, of Fayetteville, and was paid by remittance to the sending bank on February 27. About two weeks theretofore, on February 13, 1923, the plaintiff's agent, upon the order of Dixon, without demanding the bill of lading, delivered the oats to the Armfield Company, who knew that the shipment had been made on a uniform order bill of lading.

The suit was instituted July 28, 1923. The plaintiff, on February 14, 1924, paid the grain company the amount of its original draft on Dixon and took an assignment of the bill of lading, and at the March term, 1924, amended its complaint for the purpose of setting up the title thus acquired.

The question is whether the judge erred in directing a verdict upon the evidence. Of course the shipment from West Nashville, Tenn., to Fayetteville, N. C., constituted interstate commerce. Addyston Co. v. U. S., 175 U.S. 211, 241, 20 S.Ct. 96, 44 L.Ed. 136, 147; Rosenberger v. Pac. Ex. Co., 241 U.S. 48, 36 S.Ct. 510, 60 L.Ed. 880; Gaddy v. Railroad, 175 N.C. 515, 95 S.E. 925; Southwell v. Railroad, 189 N.C. 417, 127 S.E. 361. The defendant had been dealing with Dixon for about two years, and had received similar shipments from the plaintiff without producing the order bill of lading. In June, 1922, the Interstate Commerce Commission notified the plaintiff and other carriers that the clause requiring the surrender of the original order bill of lading must be complied with, and that the practice of delivering shipments without calling for such bills must cease.

There is evidence tending to show that the plaintiff's agents were instructed as to this notice, and that the agent at Fayetteville delivered the shipment in question in breach of the plaintiff's instructions. In addition, the schedule of the plaintiff's tariffs, certified by the Interstate Commerce Commission, provides that, unless lost or delayed, the carrier's original order bill of lading, properly indorsed, must be surrendered before the property is delivered; and, where the title is retained in this way, the carrier as a general rule cannot rightfully deliver the goods until the bill of lading is produced. Sloan v. Railroad, 126 N.C. 487, 36 S.E. 21; Bank v. Railroad, 153 N.C. 346, 69 S.E. 261; Killingsworth v. Railroad, 171 N.C. 47, 87 S.E. 947; Richardson v. Woodruff, 178 N.C. 46, 100 S.E. 173; Penniman v. Winder, 180 N.C. 73, 103 S.E. 908; Watts v. Railroad, 183 N.C. 12, 110 S.E. 582; Collins v. Railroad, 187 N.C. 141, 120 S.E. 824; Early v. Flour Mills, 187 N.C. 344, 121 S.E. 539; Davis v. Gulley, 188 N.C. 80, 123 S.E. 318; Railroad v. Bank, 207 U.S. 270, 28 S.Ct. 78, 52 L.Ed. 201.

The defendant contends that it bought the oats from Dixon and had no dealing with the Tennessee-Oklahoma Grain Company; but the shipment nevertheless was made upon a bill of lading by which the title was retained for the benefit of the grain company, the shipper, and its assigns. The defendant knew this. D. M. Armfield, testifying on its behalf to this effect, said that the bill of lading was not surrendered to the plaintiff when the oats were delivered; in fact, the defendant never had the bill of lading and never tried to get it.

If the jury should find from the evidence that the shipment was made upon an order bill prescribed by the Interstate Commerce Commission, having upon its face a requirement that the bill of lading properly indorsed, should be produced when the property was delivered, and the plaintiff's agent delivered the oats to the defendant without demanding the bill of lading, they should then find that no title to the oats passed to the defendant. Under these circumstances, what were the plaintiff's legal rights as against the defendant? There is authority for the position that the plaintiff, after taking the transfer of the bill of lading from the shipper, had a cause of action in contract against the defendant, and without the bill of lading,...