Thompson v. Alabama Midland Railway Co. , 122 Ala. 378 ( 1898 )

HARALSON, J.

— This suit is sought to be maintained under sections 4218 and 4223 of the Code of 1896. Section 4218 (1174) (2139) (1883) provides, that “Ware-■housemen or common carriers receiving things or property of any kind for safe keeping or carriage, for hire or reward, must, on the delivery to them of such things or property, give the person from whom received a receipt or bill of lading stating the order or condition in which such/things or property may be, * * * and the warehouseman or carrier, neglecting or failing to give such receipt or bill of lading is liable for all loss or damages the owner of such things or property may sustain in consequence of such neglect or failure” etc.

Section 4223 (1179) provides, as to common carriers, “•If any common carrier, not having received things or property for carriage, shall give or.issue a bill of lading, or receipt, as if such things or' property had been received, * * such carrier * * * is liable to any person injured thereby for all damages, immediate or consequential, therefrom resulting.”

The original statute from which these sections have been carried into the Codes, Avas approved February 28th, 1.881, (Acts, 1880-81, p. 133), and was entitled an act, “To prevent the issue of false receipts and to punish the fraudulent transfer of property by warehousemen, Avharfingers and others.”

In Jasper Trust Co. v. K. C., M. & B. R. R. Co., 99 Ala. 416, said section 4223 (11.79) was construed, and it Aims there stated, that “It Avas enacted to prevent frauds, sometimes perpetrated through spurious bills of lading,” to the injury of innocent outsiders in consequence, especially to bona fide purchasers for value without notice.

The carrier in cases of the kind, takes the risk of a delivery to the person entitled to the goods by the bill of lading, as though the property were in its actual possession, and is estopped to deny its possession. The general rule of law is, that the consignee named in the bill of lading is presumptively the owner of the goods, and must be treated by the carrier as the absolute owner until he has notice to the contrary, and a delivery to him without such notice will discharge the carrier. If a. party not the consignee claims the goods, he should be required to produce the bill of lading with the indorsement of the consignee where the goods are deliverable to him or his assigns, or, of the shipper himself, when the goods are shipped on his account and are deliverable to his order. — Hutchinson on Carriers, § 130.

This case, on the agreed statement of facts, does' not fall within the provisions of said section 4223 (1179) of the Code, enacted to prevent the issue of spurious bills of lading. The bill issued in this case was not spurious or in anywise fraudulent. It was issued, as the agreed statement of facts states, “at the instance of Messrs. Jones & Ray (the shippers, who had sold the corn to plaintiff) to oblige them, and for the reason assigned by them, that the plaintiff, Thompson (the consignee), having purchased the car load of corn from them, desired to obtain a bill of lading therefor, before he left the city of Montgomery for his home in the afternoon of the said 26th of February, 1897, and that to gratify him, the said Jones & Ray asked that the said bill of lading be issued.” The corn was not in the possession of the appellee company at the time, and it is manifest, that that company was consenting to issue said bill of hiding, with the expectation of soon acquiring possession of the same from the L. & N. Company, and was doing what it did for the accommodation of Jones & Ray and the convenience of the appellant, as it had been made to appear by what Jones & Ray had told it. Under these circumstances, the transaction does not come, as we have said, within the influence of that section of the Code, but falls within the general miles of law for the delivery of goods by a carrier to a consignee. Again, it is shown, without conflict, that the appellee company, —that provision of the Code being out of the way, — performed due and reasonable diligence in the delivery of the corn to appellant, at the proper time and place, and appellant refused to receive it. It was appellant’s fault if he sent his wagons for the corn, before its arrival. The delivery was prevented by the act of the party complaining, without the fault of the carrier, and the carrier is not therefore liable. — L. & N. R. R. Co. v. McGuire, 79 Ala. 395; L. & N. R. R. Co. v. Oden, 80 Ala. 38, 43.

On the undisputed facts, the general charge might have been given for the defendant, and the judgment must, therefore, he affirmed. — Seymour & Co. v. Farquhar, 93 Ala. 292; Adler v. Prestwood & Knowles, ante, p. 367.

Affirmed.