Dowling v. Seaboard Air Line Ry.

The opinion of the Court was delivered by

A verdict and judgment for $284.34 for the plaintiff against the defendant; an appeal by the defendant. There are five exceptions, but all were abandoned at the hearing save the first and second. Eet those two be reported.

The appeal involves, we venture to think, a misconception of the plaintiff’s case. The complaint is verbose to a degree; but the plaintiff’s testimony, if true, makes a case of bald conversion by the defendant of the plaintiff’s goods.

*192 1 *191 The plaintiff’s testimony tends to show this case: That a lot of machinery, worth around $300, was shipped in *192 November, 1913, from Savannah, Ga., over the defendant’s railway, to Olar, in Bamberg county; that the plaintiff had paid for the machinery, and it arrived in good order at Olar early in November, 1913; that the plaintiff lost or misplaced the bill of lading for the goods, and for that reason the defendant (within its rights) declined to make delivery to him; that there was long and fruitless and illaudable correspondence betwixt the parties looking to a delivery; that the plaintiff only found the bill of lading in June, 1914; that the plaintiff then went with that paper to get the machinery; that the defendant demanded the payment, before delivery, of $8.19 freight charges, $98.90 storage charges, and $7.50 advertising charges; that the plaintiff, after some fruitless effort at an adjustment, finally offered to pay all the charges; that the defendant declined to receive the money and to deliver the machinery, but sold it on June 12th at public outcry, pursuant to regular advertisement, for $10.

The charge of the Circuit Court was short, lucid and exceptionally helpful. It ought to be reported: The cause did not at all involve the filing of a claim as prescribed by section 3 of the bill of lading. Let that section be reported.

2 If the testimony for the plaintiff is true, then the defendant committed a plain breach of the plaintiff’s right. The plaintiff has not sued for loss, damage, or delay of the machinery. The plaintiff testified he offered to comply with every demand of the defendant and was refused a delivery. It is the same as if the defendant had accepted the charges and then refused to deliver the machinery. It is true the defendant testified to a different state of facts; and the Court charged the jury that, if that testimony was true, then the verdict ought to be for the defendant. The case made does not come within Georgia v. Blish Milling Co., 241 U. S. 190, 36 Sup. Ct. 541, 60 L. Ed. 948, cited by the appellant. So much for the second exception.

*193 3 The first exception is also untenable. If the plaintiff's testimony be true, then there was no issue about the three items of charge; there was, therefore, no occasion to go to the Interstate Commerce Commission to rectify a wrongful charge for storage, for that was the chief item of charge. The plaintiff testified he offered to pay all the charges, and the carrier declined to accept payment and to make delivery. The plaintiff testified as follows on that question:

When I found the bill of lading, I went with my teams and hands to get the machinery, and talked to the agent, Mr. Fail. I went the next day after I found the bill of lading. I had continued looking and searching for this paper, and when I found it I went the following day to Olar to get the machinery. I asked Mr. Fail, the agent, to deliver the machinery. I contended that the demurrage charges were not correct, inasmuch as the machinery had not been stored. It had been left out where the rain could come in on it, and it had become a secondhand planer. Q. Where was the machinery? A. At the edge of the shed. Q. The train shed? A. Yes, sir; the train shed, right close to where they had unloaded, it from the car. I claimed it was just to release the demurrage charges, but he (Agent Fail) would not agree, and advised me that he had authority to sell it; and then I agreed to pay the demurrage and advertising charges that he might have against it, and take the machinery; that I had my hands and teams there, and wanted to carry it back, and I presented the bill of lading and tendered payment, and he refused it. To begin with, he did not know what it was, and he did not think he had authority to deliver it. Q. State whether or not you requested him to correspond with his superiors. A'. Yes, sir. Q. Did he do it? A. I don’t know whether he did or not. Q. Did he do it then? A. I asked him to wire for information, and I waited some time for him to get the information. Q. How long did you stay around there? A. I guess two hours or *194 more. Q. Did you have to come home without the machinery? A. I had to come home without it. Q. State to the jury whether or not you were in earnest when you offered him the money to pay the charges they had against it. A. Of course, I was in earnest. Mr. Dyles: The.witness did not say that he offered the money. Mr. Carter: Did you offer it to him? A. Yes, sir. Q. After coming home, did you get any communication from him? A. No, sir.

The plaintiff testified he had $200 in his pocket to pay all charges, and in legal effect tendered it. . On the same issue Mr. Eaves, a former employee and station agent of the Southern Railway for 15 years, testified as follows:

Q. State what conversation passed between them so far as you can — between Mr. Dowling and Mr. Fail — with reference to this machinery, or what was said and done. A. I went with Mr. Dowling, and he asked the agent what the demurrage charges were, and he said about $100, and Mr. Dowling said something about it being excessive; anyway, Mr. Dowling said he was ready to take the machinery out, and had the bill of lading in his hand, the original bill of lading that you have there, in his hand; I looked it over at the time; this is the one he had. Q. Did Mr. Dowling present the bill of lading? A. He presented the bill of lading over the counter to the agent, and offered to pay the demur-rage, freight charges, advertising charges, and any charges that had accrued to the shipment. The agent refused to deliver the shipment, and said he had instructions from his superior officers to sell it, and that he was going to sell it, and would not deliver it under any condition. Q. State whether or not Mr. Dowling requested him to wire them? A. And Mr. Dowling said he would wait until he got a repl)'. Q. Did he seem to make any effort in that direction? A. No, sir.

The delivering agent of the carrier admitted that the plaintiff offered to pay all charges; but the witness said the plaintiff demanded of the agent that he should make some *195 notation on the bill of lading, which he declined to do. The plaintiff denied that, and the Court charged the jury that the agent was within his rights to decline to make any notation. The case of Texas v. Abilene, 204 U. S. 427, 27 Sup. Ct. 350, 51 L. Ed. 553, 9 Ann. Cas. 1075, cited by the appellant, has, therefore, no relevancy to the issue made here.

The judgment below is affirmed.