Opinion
6 Div. 653.
May 18, 1920.
Appeal from Circuit Court, Jefferson County; J.C.B. Gwin, Judge.
Action by Susie Davis against Walker D. Hines, as Director General of Railroads operating the Louisville Nashville for damages for the conversion of certain household goods. Judgment for defendant, and plaintiff appeals. Reversed and remanded.
Pinkney Scott, of Bessemer, for appellant.
Habit, act, or custom cannot control, and it is error to introduce it. 61 Ala. 247; 80 Ala. 51. There was a clear case of conversion. 35 Ala. 220; 202 Ala. 640, 81 So. 582. The plaintiff, therefore, was entitled to a directed verdict.
Huey Welch, of Bessemer, for appellee.
Counsel discuss the assignments of error, but without citation of authority.
The suit in this case was in trover, for the conversion by the defendant of certain personal property, which property was delivered by the plaintiff to defendant's agent at Fleming, Ky., to be shipped by freight to the plaintiff at Bessemer. The carriage and delivery of the freight at Bessemer, Ala., was unquestioned, but the suit grows out of the fact that the same appears to have been delivered by defendants at Bessemer to some other than the plaintiff. The testimony on the part of the plaintiff was without dispute that she called at defendant's depot several times for her freight before and after the inferential delivery, and we use this term for the reason that there is a total want of testimony on the part of defendant to show to whom this property was delivered; its witness saying she did not know if it was delivered to a man or woman. The testimony of plaintiff shows that there had been made no delivery of the property to her; that she had demanded it, and the value of the same. Over plaintiff's objection, the defendant introduced a receipt for the goods, purporting to be signed by the plaintiff, and the plaintiff denied receiving the goods or signing the receipt, and it was not shown that any one had authority to receive and receipt for the goods other than the plaintiff. A bill of lading does not pass by delivery, and the possession of it by one other than the consignee, without indorsement, will not authorize or justify the carrier in delivering the consignment to such person. Hutchinson on Carriers, § 344.
The obligation to deliver only to the party having title to the bill of lading is imposed by law on the carrier, and is absolute. L. N. R. R. v. Barkhouse, 100 Ala. 543, 13 So. 534. The witness for the defendant, in speaking of the signature of the plaintiff to the receipt and the original bill, said they were unlike; that she had no recollection as to who presented the bill of lading. It was clearly error to have permitted the introduction of this receipt, or expense account. The defendant, over the objection of the plaintiff, sought to show that it had always been its custom for the original bill of lading to be surrendered at the time of delivering the goods. This was error.
Any custom of a particular carrier, or of carriers generally at a particular place, to make deliveries to persons in possession of a bill of lading, is a bad custom, and cannot be adduced in evidence to exempt such carrier, or carriers, from liability for deliveries to wrong persons. L. N. R. R. v. Barkhouse, supra.
The plaintiff in this case was entitled under the testimony to the general affirmative charge as requested in writing, the plaintiff being entitled to recover the value of the property at the time of conversion, with interest to the time of trial.
The judgment is reversed, and the cause remanded.
Reversed and remanded.