Lawshe v. Norfolk Southern Railroad

Brogden, J. The judgment of nonsuit presents the question: Oan the holder of an unendorsed bill of lading maintain an action against a carrier either as carrier or warehouseman for damages to the property while in its possession? It is an elementary rule that upon a motion for nonsuit the evidence in support of plaintiff’s cause of action must: (1) be taken as true; (2) be construed in the light most favorable to plaintiff; (3) give *475 plaintiff the benefit of every reasonable inference to be deducted from tbe evidence offered. Whittington v. Iron Co., 179 N. C., 653; Farming Co. v. R. R., 189 N. C., 66. It is also provided by C. S., 446, that every action must be prosecuted in the name of the real party in interest. The bill of lading is the symbol of the goods specified therein. The plaintiff was in possession of the bill of lading unendorsed. It is admitted that the plaintiff ordered the goods, gave the shipping instructions to the vendor, and that he paid for the goods. He further testified that the goods still belonged to him. Certainly, if Farmer delivered the bill of lading to the plaintiff with the intention of passing title to the property described therein, this would be a sufficient vesting of title to enable plaintiff to maintain the suit. Horton v. R. R., 170 N. C., 384. The preliminary inquiry, therefore, would be whether or not the plaintiff was the real owner of the property or whether the consignee, Farmer, was the real owner thereof. There was testimony that the pláintiff had sold to Farmer flooring for seven rooms, which was to be shipped from the "Wood Mosaic Company of Louisville, Kentucky, to Farmer. There was further testimony that the flooring still belonged to the plaintiff and that it was shipped to Mr. Farmer at Bailey because that was the place where the work was to be done. Upon this testimony the defendant contended that the plaintiff was not the owner of the flooring. The plaintiff contended to the contrary. It must be conceded that if the plaintiff was not the owner of the property, he could enforce no liability against the defendant either as carrier or warehouseman. The question of ownership of the property, therefore, was directly involved, and this was a question for the jury. C. S., 311, provides as follows: “A bill may be transferred by the holder by delivery, accompanied with an agreement, expressed or implied, to transfer the title tO' the bill or to the goods represented thereby.” The obvious meaning of the statute is that a valid transfer of a bill of lading is effected by the holder when he delivers it to a third party with the intention of transferring the title to the property represented thereby. As the bill of lading is in itself the legal symbol of the property, the transfer of such symbol would be some evidence of an intention to transfer the.title. It appears from the evidence that not only was the bill of lading delivered to the plaintiff, but in addition, Farmer, upon arrival of the property, wrote a letter to the plaintiff informing him of the arrival of the lumber, and that he could not pay for it, as he would have to use cheaper lumber. This evidence, with the inferences reasonably deducible therefrom, is sufficient to be submitted to a jury on the question as to whether or not the bill of lading was delivered to the plaintiff with an “agreement, express or implied, to transfer the title to the bill or to the goods represented thereby.” It was *476 alleged in tbe complaint and admitted in tbe answer tbat tbe property arrived at Bailey in good condition. Therefore, tbe only liability incurred by tbe defendant was tbat of warehouseman. Tbe accepted rule prescribing and defining tbe liability of a carrier as a warehouseman is stated thus by Walker, J., in Hosiery Mills v. Hines, 184 N. C., 359: “So long as a carrier has tbe custody of tbe goods, although there has been a constructive delivery which exempts it from liability as a carrier, there supervenes upon tbe original carriage contract, by implication of law, a duty, as bailee or warehouseman, to take ordinary care of tbe property.” 4 R. C. L., 761, sections 228-229; Turrentine v. R. R., 100 N. C., 375; Young v. R. R., 116 N. C., 936; Motley v. Warehouse Co., 122 N. C., 347; Hanes v. Shapiro, 168 N. C., 24; Hemphill v. R. R., 170 N. C., 454. We bold upon tbe record as presented tbat tbe cause should be submitted to a jury with proper instructions by tbe court. Reversed.