Abasi Bros. v. Louisville & N. R.

Stevens, J., delivered the opinion of the court. Upon a careful consideration by the full court of the suggestion of error, we conclude that we were in error — 805 — in reversing the judgment of the trial court, and that the suggestion of error should he sustained, and the judgment of the learned circuit court affirmed. It is stated in the opinion heretofore delivered that this case is different from the ordinary case where goods are consigned to a railroad company for shipment and are by the rail-' road company delivered to a party other than the consignee. We stated that the question of ownership presented an issue which was pending in the circuit court in the replevin suit, and that Abasi Bros., who had given bond for the forthcoming of the property, had the right to the possession, and the option of either returning the property in pursuance of the judgment of the court in the replevin suit or in lieu thereof to pay the value. We overlooked, or at least did not attach due importance to, the fact that appellants, the very parties who had given the forthcoming bond, did not look to the replevin suit for the protection of their rights, but, without waiting for a trial of the action in replevin, initiated the •present litigation by filing the usual declaration in trover. The situation of the parties should be remembered. Both the parties to the present action were defendants in the replevin suit. The plaintiff in the replevin suit was the Gulfport & Mississippi Coast Traction Company. This action of replevin was instituted against three defendants, and this without any showing that the three defendants had any joint control over the property, or that one defendant was in any wise responsible for the acts of his codefendant. The condition of the bond executed by the one defendant, Abasi Bros., was to have the property before the court “to satisfy the judgment of said court in the action of replevin by said plaintiff.” Abasi Bros., as a defendant in .the replevin suit, never in fact got possession under the bond. Before they obtained the actual possession, their codefendant, the Louisville & Nashville Railroad Company, turned the property over to what — 806 — it conceived to be the real owner. Abasi Bros, then did' not seek an ,order of the circuit court having jurisdiction of the replevin in aid of their right to possession under the bond; and this record does not show what disposition, if any, has been made of the replevin suit. When their codefendant, the Louisville & Nashville Railroad Company, turned the property over to the plaintiff in replevin, appellants anticipated any proceedings that might be had in the replevin suit by themselves instituting this separate action against their codefendant in the replevin suit for the actual value of the property. In their declaration they charge that they are the owners of the property and are entitled to recover the full value thereof. They, as plaintiffs in the present action, tendered to the -court and jury an issue as to the ownership of the property. This issue was submitted to the jury under proper instructions of the court and under conflicting testimony. The jury returned a verdict against the plaintiffs, and in doing so necessarily found, not only that appellants are not the real owners of the property, but also that the Gulfport & Mississippi Coast Traction Company is the real, true owner. The real substance of the litigation in both the replevin suit and in the present action has, then, been adjudicated. Unless the trial court committed error in submitting to the jury this issue of ownership, voluntarily tendered by appellants, it follows that the case should be affirmed. The only error discussed in the opinion heretofore rendered, or seriously considered by the court, is the alleged error in refusing to give appellants a peremptory instruction. The grant of this instruction would make the replevin bond determinative of ownership. It cannot be that the execution of a bond in replevin by one of the defendants confers title to personal property. In addition to the various methods known to the law whereby title to personal property may be conferred, appellants would now have — 807 — us add the additional method of acquiring title by judicial bond. The bond does not confer title, but at most the mere right of temporary possession. The bond executed by appellants was in favor of the plaintiff in replevin, and so far as this record discloses the. codefendant, the Louisville & Nashville Railroad Company, did not have an opportunity to give bond, and was not consulted by Abasi Bros, when the latter elected to give bond. A word as to the proof in this case would not be amiss. It might be inferred, from what has been said in the first opinion, that the proof of ownership by the Gulfport & Mississippi Coast Traction Company is weak. But the record abundantly shows that this traction Company operated an electric lighting system from Ocean Springs along the beach through the city of Gulf-port to Pass Christian, a distance of some thirty-five miles. In transmitting the current the company makes use of a large aluminum wire consisting of seven smaller wires twisted together. It also used an abundant supply of copper wire for transmitting the current from the main line along the service lines into the homes and places of business. The proof tends to show that there were various kinds and sizes of this copper wire, from one-half inch trolley wire to a much smaller service wire. There was also what is referred to as “tie” wires, of lengths suitable for the purpose for which they are used, and that these tie wires and line wires had marks indicating the use to which they had been put, and by which the representative of the Traction Company was enabled to identify them. The proof tends to show that many miles of the single aluminum wire, made up of the seven small wires twisted together, as also a large amount of copper wire, had been stolen from the Traction Company. Appellees’ evidence tended to prove that this aluminum wire amounted to six-thousand pounds, worth from twenty-five to sixty cents a pound, and the copper wire amounted to not less — 808 — than five thousand nine hundred, pounds, worth from eighteen to twenty cents a pound; that a tropical storm of great violence struck the coast in September, 1915, and blew down a large part of the line of wires of the Traction Company; that thereafter much of this property disappeared, and there was strong suspicion of theft. It appears,- further, that appellants are extensive junk dealers engaged in the business of buying and shipping various junk, and the defense relied upon by appellees is that the property in question was stolen property and the purchase of this property by appellants, even without knowledge of the theft would not- convey title to them. The chief witness for appellees is one Grorenflo, who constructed the electric lighting system for the Traction Company, and who supervised the lines to such extent that he was familiar with the wires in question. This witness -positively identified the property as the property of the Traction Company. It may be conceded that there was no sufficient showing that appellants were themselves guilty of theft, but the proof does clearly show that the Traction Company lost large quantities of wire, and consequently the fact is well proven that some one took possession of this wire without authority of law. The law is well settled that, if a shipper of property is not the real owner, the carrier may upon demand turn the property over to the true owner and defeat the shipper’s claim or suit for failure to deliver by an affirm - ative showing that it had turned the goods over to the true owner. This was the holding of the supreme court of the United States in Henry Hentz v. Steamship Idaho, 93 U. S. (3 Otto) 575, 23 L. Ed. 978. In that case the court, among other things, says: “When the bailee has actually delivered the property to the true owner, having a right to the possession, on his demand, it is a sufficient defense against the claim of the bailor. The decisions are numerous to this effect. King v. Richards, 6 Wharton [Pa.] 418 [37 Am. Dec. 420]; — 809 — Bates v. Stanton, 1 Duer. [8 N. Y. Super. Ct.] 79; Hardman v. Willcock, 9 Bing. 382; Biddle v. Bond, 6 Best & S. 225, If it be said that, by accepting the bailment the bailee has estopped himself against questioning the right of his bailor, it may be remarked in answer, that this is assuming what cannot be conceded. Undoubtedly, the contract raises a strong presumption that the bailor is entitled; but it is not true that thereby the bailee conclusively admits the right of the principal. His contract is to do.' with the property committed to him what his principal has directed — to restore it or to account for it. Cheeseman v. Exall, 6 Exch. 341. And he does account for it when he has yielded it to the claim of one who has right paramount to that of his bailor. If there be any estoppel, it ceases when the bailment on which it is founded is determined by what is equivalent to an eviction by title paramount; that is, by the reclamation of possession by the true owner. . . . Nor can it be maintained, as has been argued in the present case, that a carrier can excuse himself for failure to deliver to the order of the shipper, only when the goods have been taken from his possession by legal proceedings, or where the shipper has obtained the goods by fraud from the true owner. It is true that, in some cases, fraud of the shipper has appeared; and it has sometimes been thought it is only in such a case, or in a case where legal proceedings have interfered, that the bailee can set up jus tertii. There is no substantial reason for the opinion. No matter whether the shipper has obtained the possession he gives to the carrier by fraud practised upon the true owner, or whether he mistakenly supposes he has rights to the property, his relation to bis bailee is the same. He cannot confer rights which he does not himself possess; and, if he cannot withhold the — 810 — possession from the true owner, one claiming under him cannot. The modern and best considered cases treat as a matter of no importance the question how the bailor acquired the possession he has delivered to his bailee, and. adjudge- that, if the bailee has delivered the property to one who had the right to it as the true owner, he may defend himself against any claim of his principal. ... We do not deny the rule that a bailee cannot avail himself of the title of a third person (though that person be the true owner) for the purpose of keeping the property for himself, nor in any case where he has not yielded to the paramount title. If he could, he might keep for himself goods deposited with him, without any pretense of ownership. But if he has performed his legal duty, by delivering the property to its true proprietor at his demand, he is not answerable to the bailor. And there is no difference in this particular between a common carrier and other bailees.” In the case of Thomas v. Northern Pac. Express Co.. 73 Minn. 185, 75 N. W. 1120, it is said: - “That a common carrier delivered property in its hands for shipment on demand to a stranger to the shipment, who was the rightful owner, and entitled to the possession thereof, is a good defense ágainst the claim of the bailor for failure to redeliver.” Presumptively the bailor or shipper is entitled to the property as against the carrier, and the authorities hold also that the bailee cannot himself hold the property by setting up title in a third person. But this rule has no application when the carrier yields to the paramount claim or title of the true owner. In electing to turn over the property to the true owner, appellee Louisville & — 811 — Nashville Railroad Company assumed the burden of proving that the Gulfport & Mississippi Coast Traction Company owned the property at the time of the delivery. This burden appellee, by the verdict of the jury, has met. In the case of Wolfe v. Missouri Pac. R. R. Co., 97 Mo. 473, 11 S. W. 49, 3 L. R. A. 539, 10 Am. St. Rep. 331, the court says: “Undoubtedly a carrier, in some circumstances, may de liver to the true owner, instead of to him who gave them into his charge for carriage. Its contract ... is to carry and deliver, ... or to account for the goods. It would be a lawful accounting to show that they had been delivered to the real owner upon his demand. This principle is now so well established in the law that the very statement of it will suffice for the purposes of this case. . . . But to justify a delivery to the true owner contrary to or without -the orders of the shipper, the carrier assumes the burden of proving the ownership at the time of such delivery.” See, also, as to the general obligation of the carrier in this connection, the following oases: Young v. Alabama R. R. Co., 80 Ala. 100; Western Transportation Co. v. Barber, 56 N. Y. 544; Rosenfield v. Express Co., 1 Woods, 131, Fed. Cas. No. 12,060; Shellenberg v. Fremont, E. & M. R. R. Co., 45 Neb. 487, 63 N. W. 859, 50 Am. St. Rep. 561; Lavelle v. Belliu, 121 Mo. App. 442, 97 S. W. 200; King v. Richards, 6 Whart. (Pa.) 418, 37 Am. Dec. 420; Wells v. Express Co., 55 Wis. 23, 11 N. W. 537, 12 N. W. 441, 42 Am. Rep. 695; Fitch v. Newberry, 1 Doug. (Mich.) 1, 40 Am. Dec. 33; note to Kohn v. Richmond, etc., R. R. Co., 34 Am. St. Rep. 726; Note to Jensen v. Eagle Ore Co., 33 L. R. A. (N. S.) 681. In this case the court properly placed the burden of proof on the carrier by the grant of the following instruction : “The court instructs the jury for the plaintiffs that the burden of proof in this case is on the defendant, the — 812 — Louisville & Nashville Railroad Company, to show by a preponderance of the evidence that the property in question belonged and was the property of the Gulfport & Mississippi Coast Traction Company, and if the Louisville & Nashville Railroad Company fails to do this, then the jury shall find for Abasi Bros. ’ ’ As stated, the execution of the bond by appellants did not operate to transfer .property or convey title. It is always contemplated by this statutory bond that the property should be held temporarily by the principal in the bond to abide the judgment of the court. The present action is not a suit for damages for withholding possession, but the action is bottomed upon the alleged right of ownership in appellants. The issue in the present action finally narrowed down to the.one issue of ownership as between the appellant and the Gulfport & Mississippi Coast Traction Company. This issue was voluntarily tendered by appellants themselves. The court is here called upon to deal with realities, and not mere appearances. Upon the issue of ownership appellants have lost. They cannot now be heard to speculate about an effort hereafter to fix liability against them on the bond. The obligee in that bond is the very party to whom the property has been delivered by appellee. No other assignment merits discussion. The suggestion of error is accordingly sustained, and the judgment of the circuit court affirmed. Affirmed.