Opinion
6 Div. 848.
April 12, 1923.
Appeal from Circuit Court, Jefferson County; J. C. B. Gwin, Judge.
Huey Welch, of Bessemer, for appellant.
The defendant is not liable to plaintiff for damage to flour of Guice. Count 2 is insufficient.
Goodwyn Ross, of Bessemer, for appellees.
The owner of goods shipped may sue in tort for injury thereto, although he is neither consignor nor consignee. Sou. Ry. Co. v. Jones, 132 Ala. 437, 31 So. 501; N.C. St. L. Ry. v. Hinds, 5 Ala. App. 596, 59 So. 670.
Plaintiffs, appellees, sued defendant, appellant, for damages for that defendant negligently allowed or permitted a shipment of flour to become wet and damaged by water, alleging that defendant, "a common carrier of freight by railroad, received and accepted for a reward a large quantity of flour, to wit, 19,600 pounds, at Birmingham, Ala., for shipment to the plaintiff under the business name of Gadsden Sanitary Bakery at Gadsden, Ala." The evidence showed without dispute that E. T. Guice, at Birmingham, had consigned the flour to himself at Gadsden, but that plaintiffs had ordered the flour, and, upon their payment of the draft drawn upon them for the purchase price, bill of lading attached, the flour was delivered to them. Afterwards they discovered that the shipment had been damaged in transit and brought this action. The flour was the property of Guice at the time it was damaged, and so continued until it was delivered to plaintiffs on their production of the bill of lading. Guice was the proper party to sue. R. C. L. "Carriers," §§ 397-400. The consignor-consignee having retained title, the goods at the time of the damage were at his risk. Armstrong v. Wilcox, 207 Ala. 390, 92 So. 645; Robinson v. Pogue, 86 Ala. 257, 5 So. 685; Veitch v. Atkins Grocery Co., 5 Ala. App. 444, 59 So. 746. The right of action accrued to him, and the subsequent delivery of the flour did not operate as an assignment of the damages alleged. Hood v. Warren, 205 Ala. 332, 87 So. 524. This court has held in a case circumstanced like this that the consignor may sue for the use and benefit of the purchaser. N.C. St. L. Ry. v. Abramson-Boone Produce Co., 199 Ala. 271, 74 So. 350. But there has been no decision that the purchaser in like case may sue the carrier in his own name. Moreover, the allegation was that defendant received and accepted the flour for shipment to the plaintiffs under the business name of Gadsden Sanitary Bakery, whereas the bill of lading allowed in evidence showed a consignment to Guice. True, the bill of lading contained the notation "Notify Gadsden Sanitary Bakery," but this did not authorize the carrier to deliver the shipment to the bakery without the production of a bill of lading — quite the contrary. A. C. L. R. Co. v. Dahlberg Brokerage Co., 170 Ala. 617, 54 So. 168; 1 Moore on Carriers, § 16, p. 225. Guice, the consignor, was also named as consignee. There was a variance.
These points were raised by defendant by objection to the bill of lading offered in evidence by plaintiffs and by the general charge which the court refused. In its rulings the court committed error.
It is not considered necessary to comment on the other numerous assignments of error, except to say that in its allegation of negligence the second count, upon which the case went to the jury, was sufficient. Leach v. Bush, 57 Ala. 145.
Reversed and remanded.
ANDERSON, C. J., and GARDNER and MILLER, JJ., concur.