Ocean S.S. Co. of Savannah v. People's Shoe Co.

• Decision Date: 16 January 1919
• Docket Number: 1 Div. 80
• Citation: 81 So. 241,202 Ala. 594
• Parties: OCEAN S.S. CO. OF SAVANNAH v. PEOPLE'S SHOE CO.
• Court: Alabama Supreme Court

81 So. 241

202 Ala. 594

OCEAN S.S. CO. OF SAVANNAH v. PEOPLE'S SHOE CO.

1 Div. 80

Supreme Court of Alabama

January 16, 1919

Certiorari to Court of Appeals.

Action by the People's Shoe Company against the Ocean Steamship Company of Savannah. There was a judgment of the Court of Appeals, affirming a judgment in favor of the plaintiff, and the defendant brings certiorari. Reversed and remanded.

BRICKEN J.

This was a suit in conversion brought by the plaintiff against the defendant to recover the value of 400 pairs of shoes. The court gave the general affirmative charge for the plaintiff.

It appears that the plaintiff on the 28th day of May, 1912 consigned at Mobile a shipment of shoes to J.E. French & Co. at Rockland, Mass. At Mobile the shipment was delivered to the Louisville & Nashville Railroad Company. At Montgomery these shoes were delivered to the Central of Georgia Railway Company, which in turn delivered them to the defendant at Savannah, Ga., on June 5, 1912. When delivered to the Louisville & Nashville Railroad Company at Mobile, the goods were in good shipping condition, but when they were delivered to the defendant at Savannah they were not in good shipping condition. In the condition in which they were received these shoes were transported from Savannah to Boston by the defendant, and at Boston were tendered to the New York, New Haven & Hartford Railroad Company, to be delivered to the consignee at Rockland, about 20 miles away. The N.Y., N.H. &amp H.R.R. Co. declined to receive this shipment because the cartons were neither sealed nor corded. These goods were returned to the wharf of the defendant at Boston.

On June 20, 1912, the defendant addressed a letter to the consignees, informing the consignees that it had these goods in its possession at Boston, that the N.Y., N.H. & H.R.R.

Co. would not accept them for transportation, and requesting that the consignees have some express company call and receive these goods.

On October 2, 1912, an agent of the consignees called at defendant's place, and there left the notice of June 20, 1912, upon which was written the following: "As consignee of these goods, we decline to accept the same. So far as we are concerned, you may place in public storage for account, and at risk of the owner."

On October 5, 1912, the defendant notified in writing the Central of Georgia Railway Company, from whom it received these shoes, that the N.Y., N.H. & H.R.R. Co. had declined to receive them, that the consignee also had declined to receive them, and that they would be placed in public storage in Boston.

On October 7, 1912, the defendant had these shoes taken to and stored at the warehouse of the Quincy Market Cold Storage & Warehouse Company in Boston "for account and risk of the owners." The Quincy Market Cold Storage & Warehouse Company, after notifying J.E. French & Co. that these goods would be sold for the amount of charges then due at public auction on May 24, 1913, proceeded to, and did, sell them on that day.

Early in January, 1913, the plaintiff first learned that these shoes had not reached their destination. On February 24, 1913, the plaintiff learned that the goods had been refused by the N.Y., N.H & H.R.R. Co., and on March 5, 1913, through an agent of the Louisville & Nashville Railroad Company at Mobile, the plaintiff was informed that these goods had been refused by the consignee and were at that time in "public storage at risk and expense of owner."

It is admitted that these goods were tendered to the N.Y., N.H. & H.R.R. Co. in the condition in which they were received by defendant at Savannah, Ga., and that the defendant at the time of receiving them had no knowledge that they would be rejected by the N.Y., N.H. & H.R.R. Co. Up to this point, therefore, the defendant discharged all of the duties of a common carrier that the law imposed upon it. This fact furnished defendant with the right and opportunity, by pursuing a proper legal course, of relieving itself as to this shipment of the relation of common carrier. The defendant had the right to store the goods in a suitable warehouse of a responsible party, at the risk of the owner.

After doing all this, the law imposed upon the defendant the duty of notifying the owner of the shipment of the fact and place of storage. Notice was given the consignee, J.E. French & Co., who informed the defendant in substance that they would not accept the goods, would have nothing to do with them, and, inferentially, that they did not own them. From this the defendant knew, or ought to have known, that the notice had not been given to the proper party, and that the proper party to notify under the circumstances was the consignor, at Mobile. The consignor at Mobile never received any notice from the defendant or anybody else that these goods had been stored in the warehouse of the Quincy Market Cold Storage & Warehouse Company in Boston at the risk and expense of this plaintiff. On March 5, 1913, plaintiff was informed, not by defendant, but by an agent of the L. & N.R.R. Co. at Mobile that these goods were "in public storage at risk and expense of the owner." This notice was clearly insufficient, and we therefore hold that the defendant failed to discharge this important duty that it owed the plaintiff. The Quincy Market Cold Storage & Warehouse Company never became the agent, under the circumstances, of this plaintiff.

The conduct of the appellant with reference to this shipment became unlawful, and its dominion and acts over the property of plaintiff amounted to a conversion. L. & N. v. Brewer, 183 Ala. 177, 62 So. 698; North Penn. R.R. Co. v. Commercial Bank, 123 U.S. 734, 8 Sup.Ct. 266, 31 L.Ed. 287; Buston v. Penn. R.R. Co., 119 F. 808, 56 C.C.A. 320; L. & N.R.R. Co. v. Duncan, 137 Ala. 455, 34 So. 988; Carrizzo v. N.Y., S & W.R. Co., 66 Misc.Rep. 243, 123 N.Y.Supp. 179; Morris v. Burrows (Tex.Civ.App.) 180 S.W. 1108.

The assignments of error based upon the introduction of testimony relating to the value of the shoes are in our opinion without merit. It was competent to prove the value of the shoes at Mobile on the date of their shipment in May, 1912, and that their value was the same at Boston as at Mobile. While it is true that the evidence showed that, when the shoes reached Savannah, Ga., one of the 17 cases in which they were packed was broken open, and contained only 20 pairs of shoes and 4 empty cartons, yet this fact did not necessarily overcome plaintiff's statement that in the 17 cases there were 400 pairs of shoes. There was no evidence that the value of the shoes was different on the day of the shipment at Mobile from their value at the time of their conversion at Boston.

The court committed no error in the rulings upon the evidence in this case. The judgment is affirmed.

Affirmed.

Gregory L. and H.T. Smith, of Mobile, for appellant.

Boyles & Kohn, of Mobile, for appellee.

MAYFIELD J.

This is a certiorari to the Court of Appeals. The opinion of the Court of Appeals contains a full statement of all that is necessary to an understanding of this decision.

Bills of lading are prima facie the contracts of both carriage and delivery; and the carrier must ordinarily deliver only in accordance with the bill of lading. The bill of lading is usually a contract between the carrier and the consignor. The bill usually designates the person and place to and at which delivery must be made. The consignee, the person to whom delivery is directed to be

made, is presumptively the owner of the goods, and must be treated by the carrier as the absolute owner until he has proper and valid notice to the contrary; and a delivery to him without such notice will discharge the carrier. If the consignor desires to retain title or ownership in the goods, he must notify the carrier of such fact. In the absence of other directions, the goods are deliverable only to the consignee named in the bill of lading, or to his assignee. Hutchinson on Carriers, vol. 1, §§ 177, 179; Lawrence v. Minturn, 17 How. 106, 107, 15 L.Ed. 58; Halliday v. Hamilton, 11 Wall. 564, 20 L.Ed. 214. Prima facie the legal title to goods shipped is in the party to whom the bill of lading is made or indorsed. The Thames, 14 Wall. 108, 20 L.Ed. 804. An indorsement of the shipping receipt transfers title to the goods. N.P.R.R. Co. v. Bank, 123 U.S. 738, 8 Sup.Ct. 266, 31 L.Ed. 287. Where the consignee of goods or indorsee of bills of lading cannot be found by the carrier, it is the duty of the latter to retain the goods until claimed or store them in a warehouse for and on account of the owner, who is prima facie the consignee or indorsee. 14 Wall. 107, 20 L.Ed. 804; 123 U.S. 734, 8 Sup.Ct. 266, 31 L.Ed. 287.

As the consignee is the person to whom delivery is to be made, unless the consignor, while the goods are in transit, changes the instructions, the consignee of the owner has the right to change the time and place of delivery. Mr. Hutchinson thus declares the rule:

"It has been shown in the last chapter that the owner of the goods may at any time change his instructions to the carrier as to their destination, and may, if he chooses, countermand his previous orders in regard to them; and this he may do at any time during the transit. But the consignee is the presumptive owner, and unless the carrier is advised that the consignor has not parted with his title, and that it is to vest in the consignee only upon the performance of certain conditions, as, for instance, the payment of their price, a delivery at any place appointed by the consignee will discharge the carrier from his liability, even though it should not be the place appointed by the consignor." Hutchinson on Carriers, vol. 2, § 735.

Where the succeeding carrier, as in this case,...