Yazoo & Mississippi Valley Railroad v. Altman , 124 Ark. 490 ( 1916 )

Kirby, J.,

(after stating the facts). The undisputed testimony shows that the consignment of goods was delivered by the railway company to the transfer company, the agent of appellee, who was duly authorized to receive and receipt for all shipments to appellee, and also that upon their being taken to the store of appellee, he refused to’take the goods from the transfer company, thinking he had the right to refuse to accept them from the seller because of their not arriving sooner.

Appellee 'stated, however, that upon the failure of the goods to arrive, within two or three days after they were ordered, he directed the agent of appellant not to deliver them but to hold the shipment until he could take the matter up with the consignor, that later when the goods were brought to his store by the transfer company, he refused to take them and directed that they be returned to the railway company. He likewise stated that the agent afterward called him up and asked him what was to be done about it and he told him to hold them until he could make some adjustment with the seller.

The manager of the transfer company stated that he had seen the consignment in the warehouse after they had been- returned toy direction of appellee, and not knowing that they had ever been taken out, asked why they were there and was told that they had been refused and , returned toy appellee.

This witness also stated that he knew the goods werq in the. warehouse and that the agent had taken charge of them because the agent told him that they should not have accepted them. To which witness replied: “I told 'him I would not toother, so long as the goods were worth the amount of the freight he had paid on them. ’ ’ ■

(1) There is no question tout that the liability of the carrier ceases upon delivery of the goods at the point of destination in accordance with the directions of the shipper or according to the usage and custom of the trade, nor that an actual delivery is made when the possession is turned over to the consignee or his duly authorized agent and a reasonable time given him in which to remove the goods. Arkadelphia Milling Co. v. Smoker Merchandise Co., 100 Ark. 37; Hill v. St. L. S. W. Ry. Co., 67 Ark. 402; Arkansas Midland Rd. Co. v. Moody, 90 Ark. 70.

(2) It is equally true that the refusal of the consignee to accept a shipment from the carrier does not discharge it from all liability and that it owes a duty to take care of, and can not abandon the goods or convert them to its own use. C., R. I. & P. Ry. Co. v. Pfeifer, 90 Ark. 524; L. R. Miss. R. & Tex. Railway Co. v. Glidewell, 39 Ark. 487; 2 Hutchinson on Carriers, § 685.

(3) In this instance, although the possession of thq goods was in fact turned over toy the railroad company to .the transfer company, which was appellee’s agent generally authorized to receive all shipments, it can not toe said that it constituted a delivery thereof, since appellee stated that he told the agent of the railroad company before the shipment arrived that he would not receive it 'because of the delay and to hold the goods until he could adjust the matter with, the 'Consignor and refused to take the goods when they were brought to his store and directed that they be . returned to the railroad company. The testimony 'also shows that the goods were in fact returned to the depot or warehouse of appellant company with the consent or knowledge of its agent in charge.

Neither can it be said that the undisputed testimony shows there was not a delivery of the shipment 'since it is shown there was, but for appellee’s statement that he directed the railroad agent before its arrival to hold and not deliver it. Although this statement was not contradicted, it was made by one of the parties directly interested in the result of the suit and the inferences arising from the other testimony are not altogether in accord with it. Skillern v. Baker, 82 Ark. 89.

It was a question for the jury_ under the circumstances of thfe case,' and the court erred in directing the verdict.

The judgment is reversed and the cause remanded for a new trial.