Warren & Ouachita Valley Railway Co. v. Southern Lumber Co.

• Decision Date: 09 November 1914
• Docket Number: 226
• Citation: 170 S.W. 998,115 Ark. 221
• Parties: WARREN & OUACHITA VALLEY RAILWAY COMPANY v. SOUTHERN LUMBER COMPANY
• Court: Arkansas Supreme Court

170 S.W. 998

115 Ark. 221

WARREN & OUACHITA VALLEY RAILWAY COMPANY v. SOUTHERN LUMBER COMPANY

No. 226

Supreme Court of Arkansas

November 9, 1914

Appeal from Bradley Circuit Court; H. W. Wells, Judge; reversed.

Judgment reversed.

Fred L Purcell, for appellant.

1. Delivery to a common carrier, made pursuant to an order to ship, is delivery to the consignee. 105 Ark. 57; 91 Ark. 422; 90 Ark. 161; 78 Ark. 123. Appellant was not a proper party defendant.

2. The Pennsylvania Railroad Company tendered the car to the Pennsylvania & Reading Railroad Company for the consignee who wrongfully refused to accept it. There was a mere breach of contract and the owner could not refuse to accept the shipment and sue for a conversion. 90 Ark. 524-528; 4 Tex Civ. App. 650; 6 Cyc. 449; 3 Hutchinson on Carriers (3 ed.) 1372; 6 Cyc. 525, note 53; 44 Ark. 439; 47 Am. Dec. 518.

B. L. Herring, for appellee.

1. Appellee moves to affirm because of insufficiency of appellant's abstract. This court will not explore the transcript for the discovery of errors where none are set out in the abstract and brief. 95 Ark. 123; 93 Ark. 85; 88 Ark. 449.

2. The evidence abstracted shows that appellee shipped a carload of lumber to the consignee on a through bill of lading over appellant's railroad to Pottsville, Pennsylvania, on the P. & R. railroad, at the station of the latter company in that city; that the car was diverted en route, and never reached its destination on that railroad as per bill of lading; that the lumber was never delivered to the consignee and was lost, to appellee's damage. This is sufficient to sustain the judgment of the lower court. 95 Ark. 123, 124.

OPINION

MCCULLOCH, C. J.

The plaintiff, Southern Lumber Company, instituted this action against the Warren & Ouachita Valley Railway Company, as initial carrier of a carload of lumber consigned by the plaintiff to its vendee in Pottsville, Pennsylvania, to recover the value of said carload of lumber on account of the failure to deliver to the consignee. Plaintiff was engaged in manufacturing lumber at Warren, Arkansas, and accepted an order from William Buechley & Son, of Pottsville, Pa., for a carload of lumber. The purchaser gave directions for shipment by rail to Pottsville, specifying that it should be routed over the Pennsylvania & Reading Railroad Company as the delivering carrier, the lumber yard of the purchaser having physical connection with that railroad and switching charges could be saved by shipping over that road.

The plaintiff delivered the carload of lumber to the defendant, as the initial carrier, and carried out the directions of the purchaser with respect to the route of shipment. The consignment reached Pottsville over the line of the Pennsylvania Railroad Company instead of the Pennsylvania & Reading Railroad Company, and the former tendered delivery to the consignee on its tracks. The lumber had been reloaded along the route and the directions of the shipper were not observed with respect to the delivering carrier and the purchaser declined to accept the delivery when tendered. There is a controversy whether or not the delivering carrier offered to deliver free of switching charges, one of the purchasers testifying that no such tender was made, and that he refused to accept delivery because it was not made in accordance with the directions. It is undisputed, however, that plaintiff, as vendor and consignor, gave the proper shipping directions, and the mistake occurred somewhere en route. In other words, there is sufficient evidence to show that the mistake occurred in method of delivery by some of the carriers along the route, that there was no delivery or offer to deliver in accordance with the directions, and that the defendant, as the initial carrier, is liable for whatever damages resulted from the failure to deliver. The carload of lumber is, according to the evidence, still held in storage by the Pennsylvania Railroad Company. There was a trial of the case before the court, sitting as a jury, and judgment rendered in favor of the plaintiff, from which the defendant has prosecuted an appeal. The recovery was for the value of the carload of lumber.

It is earnestly insisted by counsel for defendant that the plaintiff, as consignor, is not the owner of the goods and therefore has no right to sue. We are of the opinion that this contention is well founded, and that the plaintiff has failed to establish its right to sue for the failure to deliver. It is undisputed that the sale of the carload of lumber by plaintiff to its customer in Pottsville was unconditional, and that it delivered the same to the carrier for shipment in accordance with the directions of the purchaser. The delivery to the carrier under those circumstances constituted a delivery to the purchaser and completed the sale, the title to the goods then being in the consignee. Roberts Cotton Oil Co. v. Grady, 105 Ark. 53, 150 S.W. 150. Any loss or damage thereafter sustained fell upon the purchaser as the owner of the goods, and he alone is entitled to sue.

We are aware of a serious conflict in the authorities on this point many of them holding to the rule that the consignor, by reason of the fact that he is a party to the contract of shipment,...