This is an appeal by the plaintiff from a judgment rendered October 25, 1956, in the Houston Circuit Court on a trial de novo in a case (on a bill of lading) brought there by certiorari from the Houston Law and Equity Court (Local Acts 1947, No. 315, approved August 13, 1947, § 9(1)), because the writ of certiorari was sought more than five days after judgment in the Law and Equity Court, Code 1940, T. 13, § 477.
Appeals from such proceedings must be brought here as provided in Code 1940, T. 7, § 1074, within thirty days after rendition of judgment, e. g., White Way Pure Milk Co. v. Alabama State Milk Control Board, 265 Ala. 660, 93 So.2d 509. Here the notice of appeal was given March 21, 1957, simultaneously with the filing of appeal bond.
The appeal not being timely, it is due to be dismissed, Donald v. Cotton States Tire & Rubber Co., 206 Ala. 88, 89 So. 296.
Dearborn Stove's brief sets out the following as the controlling facts in evidence:
The consignee was "Watson Hardware Co., Inc." without words of negotiability such as "or order." The bill of lading, as copied into the record before us, is, for the most part, meaningless. Hence, we can only take up the two questions raised by the ruling of the court below.
First, was the circuit judge entitled to bring the case to his court from the Houston Law and Equity Court via statutory certiorari?
Second, can the consignor of an interstate shipment maintain an action against the carrier for nondelivery without showing some special property in the goods?
This case originated in the Houston Law and Equity Court. (See Act No. 315, Local Acts 1947, p. 226, as amended by Act No. 208, General and Local Acts 1949, p. 295.) Section 9 of the 1947 Act provides that appeals in civil cases at law from the Law and Equity Court may be taken directly to this court or to the circuit court.
In the Law and Equity Court, the plaintiff, Dearborn Stove, took a default judgment, and Dean let the time for appeal expire. Code 1940, T. 13, § 477.
Dearborn Stove then filed a motion to quash the writ and remand the cause
Under T. 13, § 477, supra, the right of appeal from the justice court and other courts to the circuit court expires after five days. Undoubtedly, to alleviate this harshness, the Legislature, by what is now T. 13, § 184, authorized circuit judges to grant writs of statutory certiorari in civil causes directed to (among others) judges of inferior courts in all cases where appeals would otherwise lie to the circuit court. See Ex parte Bryant, 38 Ala.App. 127, 78 So.2d 821.
Under the views of our Supreme Court in reversing and remanding our former judgment in this case, and under the authority of T. 13, § 184, supra, we conclude that the motion to quash the writ was not well taken. See Ex parte McDanal, 32 Ala.App. 445, 27 So.2d 504. Otherwise, we should have the anomaly of the local act superseding a general statute. This is undoubtedly a case where an appeal would lie from the law and equity court to the circuit court. § 9, Act No. 315, supra.
The setting for the second question is based on the trial judge's charging:
The rights of the parties come under the Carmack Amendment to the Interstate Commerce Act and the Federal Bills of Lading Act (49 U.S.C.A. § 20(11), and §§ 81-124). Chesapeake & O. Ry. Co. v. Martin, 283 U.S. 209, 51 S.Ct. 453, 75 L.Ed. 983; Illinois Steel Co. v. Baltimore & O. R. Co., 320 U.S. 508, 64 S.Ct. 322, 88 L.Ed. 259; Chesapeake & O. Ry. Co. v. State National Bank, 280 Ky. 444, 133 S.W.2d 511, 130 A.L.R. 1306; Surprise Furniture Co. v. Long Island R. Co., Sup., 107 N.Y.S.2d 316; White Cross Hospital v. Chesapeake & O. Ry. Co., Ohio App., 125 N.E.2d 363.
Our State Bills of Lading Act, Code 1940, T. 48, §§ 356-397, expressly yields so as not to "unlawfully affect interstate commerce."
Jurisdiction of state courts is concurrent. Galveston H & S A Ry. Co. v. Wallace, 223 U.S. 481, 32 S.Ct. 205, 56 L.Ed. 516 (liability of initial carrier under Carmack Amendment to Interstate Commerce Act); see also Walker v. Jones, 33 Ala.App. 348, 34 So.2d 608.
49 U.S.C.A. § 102 (§ 22 of the Federal Bills of Lading Act), provides (as does Code 1940, T. 48, § 377) in part:
49 U.S.C.A. § 88 (§ 8 of the Federal Act, cf. Code 1940, T. 48, § 363), imposes a duty of delivering the goods to the consignee
49 U.S.C.A. § 82 (cf. Code 1940, T. 48, § 357), defines a straight bill as one:
"* * * in which it is stated that the goods are consigned * * * to a specified person * * *"
Consignment to "Watson Hardware Co. Inc." made the instant document a straight bill.
Under § 88, supra, Dean was, in the absence of some lawful excuse, bound to deliver to Watson Hardware Co., the consignee. There is dictum in McDowell Associates Inc. v. Pennsylvania R.R., D.C., 151 F.Supp. 894, 897, based on 49 U.S.C.A. § 20(11), which does not take into account this effect of the Federal Bills of Lading Act. However, the court pointed out that the consignees had assigned their claims for cargo damage to McDowell which put Mc-Dowell in their shoes.
Pennsylvania R. Co. v. Olivit Bros., 243 U.S. 574, 37 S.Ct. 468, 61 L.Ed. 908 (which arose before the Bills of Lading Act took effect) was an action brought by a consignee who was also the consignor. See Carr v. Pennsylvania R. Co., 88 N.J.L. 235, 96 A. 588; Olivit Bros. v. Pennsylvania R. Co., 88 N.J.L. 376, 96 A. 589.
In L. E. Fosgate Co. v. Atlantic Coast Line R., 263 Mass. 192, 160 N.E. 783, the Fosgate firm (which had received oranges consigned by W. E. Lee & Co. to the Lee firm) was not entitled to maintain an action because it was not "direct obligee" of the carrier under the Carmack Amendment. The opinion harmonizes the Carmack Amendment and the Bills of Lading Act.
In our cases of Southern Ry. Co. v. Jones Cotton Co., 167 Ala. 575, 52 So. 899, and Gulf Compress Co. v. Jones Cotton Co., 172 Ala. 645, 55 So. 206, the cotton was shipped subject to draft; the suit was for an accounting; and the court did not go into the Federal statutes.
Dearborn Stove has here shipped on a "straight," i. e., nonnegotiable bill of lading; and, hence, title passed to the hardware company on delivery to Dean for carriage, at least as far as Dean was concerned.
At Elliott, Railroads (3rd Ed.), § 2146, at pp. 522-523, we find:
See also Estherville Produce Co. v. Chicago, R. I. & P. R. Co., 8 Cir., 57 F.2d 50.
We have experienced difficulty with the opinion in Alabama Great Southern R. Co. v. Lawler, 213 Ala. 119, 104 So. 412, cited in 13 C.J.S. Carriers § 249(1) (Holder of Bill of Lading), as authority for:
However, an examination of the pleadings and the facts in the Lawler case show that it is not a controlling precedent here. First and foremost, Mrs. Lawler was neither consignor nor consignee, hence not in privity with the carrier so far as the record stood on demurrer; nor did she allege that she was the holder of an "order" bill of lading. Moreover, the opinion, while clearly disclosing an interstate shipment, does not treat of the effect of the Carmack Amendment.
An intrastate shipment was of concern in Louisville & N. R. Co. v. Sarris, 209 Ala. 217, 95 So. 903. There, as in Nashville, C. & St. L. Ry. v. Abramson-Boone
In the Abramson-Boone case, the consignor-consignee sued for the use and benefit of the purchaser. In Southern Ry. Co. v. Northwestern Fruit Exchange, 210 Ala. 519, 98 So. 382, 386, wherein Dilling was consignor, the court, per Miller J. said:
From Clark v. Louisville & N. R. R. Co., 216 Ala. 637, 114 So. 295, 297, we quote:
In Lawrence v. Minturn, 17 How. 100, 15 L.Ed. 58, Minturn had libelled the ship Hornet for the nondelivery of two steam boilers taken on board as deck cargo at New York for delivery to him at San Francisco, perils of sea, fire and collision only excepted. As to the right of the libellant to institute the action, the court stated the respondents had the burden of proof "to displace the prima facie right of action of the consignee arising from the bill of lading." 17 How. at page 108.
In the annotation, 36 L.R.A., N.S., 68, at page 69, we find:
Here Dearborn Stove adduce no evidence to rebut the presumption that the consignee, Watson Hardware Company was the owner of the goods upon delivery to Dean. Moreover, there was also no evidence to support any theory which would have supported Dearborn Stove's proferred amendment of the complaint to make Dearborn Stove the nominal plaintiff for the use and benefit of Watson Hardware Company. There was no evidence of any assignment, authorization or obligation so to do.
Moreover, to amend from Dearborn to "Dearborn for the use of Watson" would, under Code 1940, T. 7, § 127, work a complete change of parties plaintiff. Southern Ry. Co. v. Brewster, 9 Ala.App. 597, 63 So. 790, was merely amending from equitable to legal owner to correct by adding the nominal party.
When the trial judge stated he was giving the affirmative charge for the defendant on the original complaint, Dearborn Stove sought to amend by substituting as plaintiff Dearborn Stove Company, suing for the use and benefit of Watson Hardware Company, Inc. This amendment was disallowed, we think correctly.
Code 1940, T. 7, § 239, permits amendments pending trial but does not authorize a complete change of parties. This proposed amendment would have worked such a change. Vinegar Bend Lumber Co. v. Chicago Title & Trust Co., 131 Ala. 411, 30 So. 776.
Moreover, there was no evidence which would have supported a judgment in favor of the substituted plaintiff.
The judgment below is due to be