115 Ark. 221 | Ark. | 1914
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 en 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.
W-e 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, has a right to sue whether he is the owner of the goods or not. The American cases which hold to that rule follow the opinion of Chief Justice Shaw in the case of Blanchard v. Page, 8 Gray 281, where that principle is. announced. The courts in Wisconsin, Illinois, Missouri, Virginia, -and Mississippi follow that rule; but the distinction is made that where the suit is not upon the contract, but in tort to recover the amount of damage, the true owner must sue, and that the consignor, as such, can not sue unless he is in fact the owner of the goods. We are unable to approve the reasoning of those cases, especially in view -of the statutes of this State which declare that all actions must be maintained by the real party in interest. Kirbys Digest, § 5999. The theory of those cases, which hold to the rule that the consignor may sue, is -also that if he is not the real -owner the recovery is for the benefit -of the real owner and the suit may for that reason be brought in his name. The difficulty with that theory is, however, that the consignee named in the bill of lading is -also a party to the contract and is entitled to sue thereon, whether it be a suit on the contract or for the tort; and there is little, if -any, reason for saying that the consignor should be -allowed -to sue for the benefit of another who is also a party to the contract.
We approve, entirely, the reasoning of the Supreme Court of Nebraska, in the case of Union Pacific Ry. Co. v. Metcalf, 50 Neb. 452, where it is said the true test is whether a suit by the consignor, who has parted with his title to the goods by the delivery to the carrier, would constitute a bar to an action by the consignee, who is the real owner. This subject is fully discussed by Mr. Hutchinson, and the authorities collated. 3 Hutchinson on Carriers (3 ed.), § 1304, et seq.
The evidence, therefore, does not support the judgment in this case, and a reversal must result. It is so ordered.