Spence v. Norfolk & W. R. Co.1

• Decision Date: 08 August 1895
• Citation: 92 Va. 102,22 S.E. 815
• Court: Virginia Supreme Court
• Parties: SPENCE et al. v. NORFOLK & W. R. CO.1

22 S.E. 815

92 Va. 102

SPENCE et al.

v.NORFOLK & W. R. CO.1

Supreme Court of Appeals of Virginia.

Aug. 8, 1895.

Drlay in Transportation of Goods—Action for Damages—Who mat Maintain —Form of Action.

1. Plaintiffs shipped goods by a railroad, guarantying freight. The bill of lading was accompanied by a draft, to be accepted by consignees before delivery of the goods. The goods having been damaged by delay, the consignees refused to receive the same, and the railroad company notified plaintiffs, requesting them to direct the disposition of the goods, which plaintiffs refused to do, on the ground that the goods belonged to the consignees, and were shipped at their risk. Held, that plaintiffs could maintain a suit against the railroad company for damages caused by the delay.

2. Where the direction to the carrier is not to deliver the goods until payment shall be made by the consignee, the property in the goods continues in the consignor, who can sue for damage to the same, caused by delay, either by an action on the case, or in assumpsit.

Error to circuit court, Wythe county; Williams, Judge.

Action by Spence & Neff against the Norfolk & Western Railroad Company. To a judgment for defendant, plaintiffs bring error. Reversed.

W. S. Poage, for plaintiffs in error.

Boiling & Stanley, for defendant in error.

BUCHANAN, J. The plaintiffs in error brought an action on the case, against the defendant in error, for damages for failing, as a common carrier, to deliver at their destination, within a reasonable time, two car loads of vegetables and fruit.

The verdict of the jury and the judgment of the trial court were in favor of the defendant, and to that judgment this writ of error was allowed.

The principal error complained of was the refusal of the court to give instruction No. 5 asked for by the plaintiffs, and the giving of an instruction of its own in lieu thereof. The instruction asked for, and which was refused, was as follows:

"The court further instructs the jury that, when the risk of the safe transportation of the goods is upon the consignor, he will be considered as the owner, for the purpose of maintaining an action against the carrier for their loss or injury.

"Therefore, if the jury shall believe from the evidence in this case that the risk of the transportation of the goods and produce set out in the plaintiffs' declaration was upon them [plaintiffs], they are entitled to maintain this action for said loss or injury."

The instruction the court gave in lieu of it is in these words: "If the jury believe from the evidence that the plaintiffs contracted to sell to De Witt & Co. and Bayer & Son certain produce; and if the jury believe that, according to the true intent and meaning of the said contracts between the said plaintiffs and the said De Witt & Co. and Bayer & Son, the plaintiffs sold the said produce to the said De Witt & Co. and Bayer & Son at an agreed price, free on board the defendant's cars at Rural Retreat, and that the plaintiffs did deliver said produce on the defendant's cars at Rural Retreat, and consigned the same to said De Witt & Co. and the said Bayer & Son at Columbus, Ohio, and Charleston, S. C, to be delivered to the said consignees at their destinations by the defendant, and that plaintiffs charged the said De Witt & Co. and Bayer & Son, on the books of the plaintiffs, with the price of said goods so shipped to them, —then the plaintiffs cannot maintain this action, and the Jury should find for the defendant."

On the trial of the cause, the defendant does not seem to have controverted its liability for failure to perform its duty in carrying the goods shipped, but relied entirely upon the defense that the plaintiffs had no interest in the goods shipped after they were delivered to the defendant, and therefore had no right of action against it for such failure of duty, or, if they had any right of action at all, it was an action of assumpsit on the contract, and not an action on the case in tort.

The question has been very much discussed in this country whether the shipper or consignor can maintain any action against a common carrier for damages done to goods after they have been received by such carrier for the purpose of carriage, and before they have been delivered to and received by the consignees, when the shipper or consignor had no right of property, general or special, in the goods, and no right or interest in their safe carriage, except that arising from the bill of lading.

One line of cases holds that, since the shipper or consignor has parted with all interest in the property, he cannot be injured by the failure of the common carrier to perform its duty, or to keep its contract, and the consignee or owner alone can maintain the action.

Another line of cases holds that, inasmuch as the contract for shipment was made by the shipper or consignor, he has the right to maintain such action, because the carrier agreed with him to carry the goods safely, and within a reasonable time, and the action is for the breach of that agreement.

This subject was discussed at length, and with great learning and ability, by Chief Justice Shaw, in the case of Blanchard v. Page, 8 Gray, 281. The facts of that case showed that the plaintiffs in the action against the carrier had sold goods to another party, who had paid for them, and they afterwards delivered the goods to the common carrier, to be forwarded for them. When they delivered them to the carrier, they took from it a bill of lading purporting to be a contract with the shippers to carry and deliver thegoods to the purchaser. The goods were lost, and an action was brought by the shippers against the carrier for their value, upon the contract in the bill of lading. It was admitted that the shippers had no interest or property in the goods at the time of the shipment, and it was for that reason contended that they could not maintain the action; but the court held, notwithstanding the fact that they had no interest in the goods shipped, that an action could be maintained upon the contract. And this position was sustained by an argument, both upon general principles and upon authority, which, as Mr. Hutchinson says in his work on Carriers, seems unanswerable. In a later case decided by the same court, it was held that, where there was no bill of lading, nor other writing evidencing the contract, an action could be maintained by the consignor, who had no interest in the property shipped, nor an express contract with the carrier. Finn v. Railroad Corp., 112 Mass. 524.

Mr. Hutchinson, in his work on Carriers, after discussing this question at length, reaches the conclusion that the consignor, who has made a special contract with the carrier, may always maintain an action upon it for the loss of or damage to the goods, regardless of the question of interest or property in them. Nor would it appear to be material whether the freight upon them has been paid by him or another. If not paid, he is the party to whom the carrier may look for its payment, in case the consignee should refuse to accept the goods, or to pay the carrier's charge upon them. And if paid, no matter by whom, the payment would be a sufficient consideration for the contract with the consignor. Section 728.

Ang. Carr. § 299, says that the rule upon this subject is properly stated by Park, J., in Freeman v. Birch, 1 Nev. & M. 420, in which it was held "that the person employing the carrier must bring the action, but that the circumstance of the legal right being in one person may be evidence of employment by that person. Hence it follows that, in order to decide who is the proper party to be made plaintiff in an action of this sort, the first inquiry must be whether any special agreement for the carriage of the goods in question exists. If there is none, it then becomes necessary to ascertain in whom the right of property is vested. In the former case, the remedy for any breach of contract belongs to the party with whom such agreement is made. Therefore, where the consignor agrees with the carrier for the conveyance of the goods, and is to pay him, the action is well brought"

The plaintiffs in this case, according to their evidence, not only made a special contract with the defendant, by which they guarantied the payment of the freight, but the consignees were not entitled to the possession of the goods until they accepted the drafts attached to the bills of lading. The sales in this case were made by telegram. The Co lumbus purchasers or consignees, De Witt & Co., wired the plaintiffs for prices, who replied that they would sell them the produce, shipped, at a certain price, "f. o. b. the cars [free on board the cars] at Rural Retreat, shipment subject to draft with bill of lading attached." De Witt & Co. then wired the plaintiffs not to send draft, and they would remit. The plaintiffs answered, refusing to ship unless they would agree to their terms. De Witt & Co. then wired them to ship according to their first proposition. The same kind of a contract, it seems, was made with Bayer & Son, the...