Piner Bros. v. Norfolk Southern Railroad

Stacy, J. Defendant’s chief exception, as stressed on the argument and in its brief, is the one addressed to the refusal of the court to grant its motion for judgment as of nonsuit, made first at the close of plaintiff’s evidence and renewed at the close of all the evidence, upon the ground that the consignee of said shipment of cabbages, and not the plaintiff, is the real party in interest and alone entitled to maintain an action for its loss or damage. Speaking to this question in the recent case of Anderson v. Express Co., 187 N. C., p. 173, Adams, J., epitomizing the decisions on the subject in a concurring opinion, said: “When goods are delivered to a common carrier for transportation on an open bill of lading, the presumption is that the title to the goods passes to the consignee. In such case, if there is no restrictive condition, he, and not the consignor, is the aggrieved party, in whose name a suit for loss or damage must be brought. (Citing authorities.) But it is open to the consignor to show his right to institute and maintain the action. He may sue if title is retained, or if the goods are to be sold for his benefit, or if he has contracted to deliver the goods to the consignee, or if title is to pass only when the goods are received, or if the consignee is to inspect the goods before the purchase price is payable, or if a draft attached to a bill of lading is not paid by the consignee, or if the goods are rejected and thrown back on the consignor”; citing a number of authorities. To like effect is the language of the present Chief Justice in Buggy Corp. v. R. R., 152 N. C., p. 122, quoting with approval from R. R. v. Guano Co., 103 Ga., 590: “Where a consignee of freight refuses to receive goods on account of damages done to them in the hands of the common carrier, and the goods are subsequently thrown back on the hands of the consignor, the latter has a right to bring an action for such damages against the carrier.” It .was in evidence, and not denied, such evidence coming from a member of the partnership of Andrews Brothers Company, that the *341 shipment of cabbages here in question was rejected by the consignee and thrown back on the hands of the consignor, hence the motion to nonsuit, upon the ground stated, was properly overruled. Anderson v. Express Co., supra. The remaining exceptions call for no extended discussion. The case seems to have been tried in substantial conformity to the law bearing on the facts, and we have discovered no ruling or action on the part of the trial court which would warrant a reversal or an order for another hearing. The verdict and judgment will be upheld. No error.