#### C. H. GASKINS v. SOUTHERN RAILWAY COMPANY et al.

(Filed 15 September, 1909.)

Carriers of Freight — Consignor and Consignee — Title—Evidence— Nonsuit.

The title to goods shipped under an open bill of lading prima facie vests in the consignee; and when the consignor, in his action for damages to the goods against the carrier, fails to offer evidence-upon his allegation that he had retained the title which is denied, defendant’s motion to nonsuit should be granted.

Appeal from Peebles, J., May Term, 1909, of Beaueoet.

This action was bfought against the defendants, the Atlantic Coast Line Railroad Company and the Southern Railway Company, to recover damages for injury to a soda fountain, which was delivered by the plaintiff to the first-named company at Grifton, N. C., to be shipped via Selma, N. 0., to J. 0. Reitzel, at Liberty, N. C., a station on the Southern Railway. When it was delivered for shipment the soda fountain was in good condition. The plaintiff alleges in his complaint “That the soda fountain and fixtures were his property, and by agreement with *19J. 0. Reitzel, the consignee, they were to remain his property until accepted and paid for by Reitzel.” This allegation was denied in the answer of the defendant, and there was no evidence to sustain it, it appearing only that the fountain and its fixtures were shipped under an open bill of lading, which was .issued by the Atlantic Coast Line Railroad Company to the plaintiff.

The court submitted issues to the jury, which, with the answers thereto, were as follows:

“In what sum, if any, is the defendant Atlantic Coast Line Railroad Company indebted to the plaintiff ?” Answer: “Twenty dollars.”

“In what sum, if any, is the defendant Southern Railway Company indebted to the plaintiff?” Answer: “Two hundred and fifty dollars.”

It appeared that the ice shaver was damaged while the fountain was in the possession of the Atlantic Coast Line Railroad Company, and the defendant did not appeal from the judgment for the amount assessed by the jury against it for said damage. The evidence tended to show the following facts:

The Atlantic Coast Line Railroad Company has a “line of track” from Grifton to a point beyond Selma, and the Southern Railway Company has a “line of track” which crosses the line of its co-defendant at Selma and extends beyond that place. The two companies receive and deliver freight at Selma from and to each other. This statement is taken from the answer of the Southern Railway Company, which was in evidence. The bill of lading issued to the plaintiff by the Atlantic Coast Line 'Railroad Company was also in evidence. O. H. Gaskins testified in behalf of the plaintiff as follows: “I helped to crate the property; it was in perfect condition and worth $285. It was delivered to the Atlantic Coast Line Railroad Company at Grifton for transportation to Liberty, N. C. I last saw the property in the warehouse of the Atlantic Coast Line at Grifton, about sixty days after it had been shipped. I only saw the top and end of the fountain on its return. The agent objected to my examination. The marble was broken all to pieces; the ice shaver was missing. The ice shaver was worth $22.50. I know- as a fact that the fountain started to Liberty. I do not know whether it ever got there.” At the close of this testimony the defendant Southern Railway Company moved to nonsuit the plaintiff. The motion was overruled and an exception entered.

J. A. Spiers, a witness for the Atlantic Coast Line Railroad Company, testified as follows: “This shipment was received at Selma, 12 March, 1908. I delivered it to the Southern Railway Company. The wheel to the ice shaver was in bad condition.”

*20At the close of all the testimony the defendant Southern Railway Company renewed its motion to nonsuit, which being overruled, it excepted.

The court charged the jury as follows: “The agent at Selma shows delivery of the fountain to the Southern Railway Company on 12 March, in good condition, with the exception of damage to the'ice shaver. (If you believe that the Atlantic Coast Line Railroad Company delivered the property to the Southern Railway Company at Selma in good condition, that would put the burden on the Southern Railway Company to show delivery in good condition at the point of destination. If you believe the testimony, you will assess the damage to the ice shaver against the Atlantic Coast Line Railroad Company and the balance of the damage against the Southern Railway Company.) You cannot give against the Southern Railway Company more than $262.50 damages. You are not bound to give plaintiff the amount of damages demanded by him.”

The Southern Railway Company excepted to that part of the charge in parentheses. There was a motion for a new trial, which was denied. Judgment was entered upon the verdict, and the Southern Railway Company excepted and appealed, assigning errors as follows:

1. That the court erred in refusing the motion to nonsuit.

2. That there was error in the part of the charge to which exception was taken.

W. G. Rodman for plaintiff.

W. B. Rodman, R. G. Lucas and J. E. Pou for defendant.

Walker, J.

It appears in this case that the fountain was delivered to the carrier by the plaintiff, who had sold it to Reit-zel, and who received from the carrier an open bill of lading, by which the latter agreed to transport and deliver the fountain to the consignee, Reitzel, at Liberty, N. C., the shipment to be made over the lines of the two defendants. The case, therefore, is governed by the principle settled by this Court in Stone v. Railroad, 144 N. C., at p. 228, and Manufacturing Co. v. Railroad, 149 N. C., 261. In the former of these cases we held it to be “undoubtedly true that in the absence of any suggestion that the goods were not shipped ‘open,’ the delivery to the carrier taking a bill of lading to the consignee vests in the consignee the title to the goods, making the carrier liable to him for failure to transport and deliver. 'Prima facie the consignee is the owner of the goods in transit, the property therein vesting in the consignee upon delivery to the carrier, and he only can sue the car*21rier for nondelivery, tbougb a receipt was given to tbe consignor. Tbe carrier is entitled to consider and bound to treat tbe consignee as sucb owner, unless it is advised tbat a different relation exists, or unless notice of sucb fact is to be implied from tbe manner of shipment, as when goods are sent C. O. D.’ Moore on Carriers, 188; Tiffany on Sales, 195; Crook v. Cowan, 64 N. C., 743; State v. Patterson, 134 N. C., 612; Ober v. Smith, 78 N. C., 316.”

In tbe latter case tbe doctrine was tbus stated: “It is common learning tbat when tbe vendor delivers an article to tbe common carrier to be transported by tbe usual route to tbe vendee, taking an open bill of lading, tbe title to tbe article passes to tbe vendee or consignee. Tbis is true, although by tbe terms of tbe sale tbe vendee is to pay cash. For an injury to an article while in transit, or delay in transportation or delivery, tbe carrier is liable to tbe consignee. Stone v. Railroad, 144 N. C., 220.”

Tbe case of Stone v. Railroad was approved in Cardwell v. Railroad, 146 N. C., 218, in tbe following language: “When goods are delivered to a common carrier for transportation, and a bill of lading issued, tbe title, in tbe absence of any direction or agreement to tbe contrary, vests in tbe consignee, who is alone entitled to sue, as tbe 'party aggrieved,’ for tbe penalty given by section 1467, Eevisal. This is undoubtedly a correct decision, applying, as stated, where it appears tbat goods are shipped and tbe bill of lading taken to a consignee, without more.”

If tbe plaintiff bad shipped tbe fountain and taken a bill of lading requiring it to be delivered “to bis order,” or bad retained tbe title and control of tbe fountain in any other way, be would be entitled to recover for any damage to tbe property or for any delay or other default of tbe carrier. • He alleges, it is true, in bis complaint, tbat be retained tbe title, but tbis allegation is, denied by tbe defendant, and there was no proof to sustain it, and we must conclude, therefore, tbat there was no agreement with tbe carrier or tbe consignee to prevent tbe application of tbe ordinary rule which we have stated. If tbe plaintiff can show in another action tbat be retained tbe title to tbe fountain, be will be in a position to sue for any breach of contract by tbe defendant and recover tbe damages to which be may be entitled. We do not consider tbe other questions debated before us, for tbe reason tbat upon tbe record and tbe case, as they now appear, tbe court erred in refusing to sustain tbe motion for a nonsuit and dismissing tbe action.

Action dismissed.