Thus the first question arises as to the person who is the proper party plaintiff in the action in which the carrier of goods is the defendant, involving the relations of the consignor and consignee to the carrier, to each other, and to the goods. The form of action. is highly important in states in which the outworn system of common-law pleading still obtains; but even in those states which have adopted the reformed procedure, known as "Code states," the theory of the case as based on contract or tort involves distinctions that cannot be overlooked. The form of the pleadings, or written statements filed by the parties to the action previous to the trial, is beyond the scope of this book. So this subject is dismissed with a few observations on the necessary allegations in these pleadings. The admissibility or relevancy of evidence is not discussed, but merely what must be proved by evidence that is both. relevant and admissible. Finally, the chapter closes with a statement and very brief discussion of the rules, and reasons underlying them, determining the amount of damages for which the common carrier of goods may be held liable.

THE PARTIES

154. By the great weight of authority, the following rules apply in determining the proper party plaintiff in an action against the common carrier for loss of, injury to, or delay in transporting, the goods:

(a) Where the contract for transportation is directly with the consignor, the consignor, whether or not he retains any interest in the goods, may maintain an action on such contract in his own name for any breach of this contract; but the recovery is for the benefit of the consignee, if the latter is the real owner of the goods.

(b) Prima facie the consignee is the owner of the goods, and is therefore the person with whom, through the agency of the consignor, the contract is made, and hence the consignee can sue on this contract for any breach of it resulting in loss of, or damage to, the goods. But this presumption may be rebutted.

(c) The person at whose risk the goods are carried—that is, the person having a general or special property in the goods, and who would therefore suffer if the goods are lost or injured-may maintain an action in tort for such loss or injury.

(d) A consignee who has no property in the goods, either general or special, and incurs no risk in their transportation, cannot maintain, either in contract or tort, any action for the loss of, or damage to, the goods.

The action against the common carrier of goods may be either in contract (ex contractu), arising out of the carrier's express or implied contract for the transportation of the goods, or in tort (ex delicto), arising out of the carrier's failure to live up to the duty imposed on him by law. This subject is considered in the next section, but it greatly conduces to clearness, in discussing the question of the proper party plaintiff, if this distinction is carefully kept in mind.

Action by the Consignor on the Contract

When, as is usually the case, the contract of shipment is made by the carrier directly with the consignor, the consignor, as a party to this contract, may bring an action against the carrier for any breach of the contract.1 Obviously, the consignor is here the person with whom the carrier has contracted to transport and deliver the goods. He, therefore, is entitled to the performance of such contractual duty and, under the rule stated, may maintain an action on the contract for a breach thereof. Whether or not the consignor makes the contract on behalf of another, or whether or not the consignor has any interest in the goods, by virtue of the fact that the contract is made in his name, he, by the well-known rules of agency, is entitled to sue on such contract, and the carrier cannot defend on the ground that the consignor is acting on behalf of an undisclosed principal.2

1 CARTER v. SOUTHERN RY. CO., 111 Ga. 38, 36 S. E. 308, 50 L. R. A. 354, Dobie Cas. Bailments and Carriers, 273;. Ross v. Chicago, R. I. & P. R. Co., 119 Mo. App. 290, 95 S. W. 977; Zalk v. Great Northern R. Co., 98 Minn. 65, 107 N. W. 814; Swift v. Pacific Mail S. S. Co., 106 N. Y. 206, 12 N. E. 583; Dows v. Cobb, 12 Barb. (N. Y.) 310, 316; Ohio & M. R. Co. v. Emrich, 24 Ill. App. 245; Stafford v. Walter, 67 Ill. 83; Great Western R. Co. v. McComas, 33 Ill. 185; Illinois Cenț. R. Co. v. Schwartz, 11 Ill. App. 482, 487; Blanchard v. Page, 8 Gray (Mass.) 281, 295; Atchison v. Chicago, R. I. & P. Ry. Co., 80 Mo. 213; Harvey v. Terre Haute & I. R. Co., 74 Mo. 538; Cantwell v. Pacific Exp. Co., 58 Ark. 487, 25 S. W. 503; Hooper v. Chicago & N. W. Ry. Co., 27 Wis. 81, 9 Am. Rep. 439; Missouri Pac. Ry. Co. v. Smith, 84 Tex. 348, 19 S. W. 509; Carter v. Graves, 9 Yerg. (Tenn.) 446; Goodwyn v. Douglas, Cheves (S. C.) 174; Joseph v. Knox, 3 Camp. (Eng.) 320; Moore v. Wilson, 1 Term R. (Eng.) 659; Davis v. James, 5 Burrows (Eng.) 2680; Mead v. Railway Co., 18 Wkly. Rep. (Eng.) 735; Dunlop v. Lambert, 6 Clark & F. (Eng.) 600. See, also, cases cited in note 2.

2 Blanchard v. Page, 8 Gray (Mass.) 281; Reynolds v. Chicago & A. R. Co., 85 Mo. 90; Spence v. Norfolk & W. R. Co., 92 Va. 102, 22 S. E. 815, 29 L. R.

In a very early case before Lord Mansfield (Davis v. James) the decision was properly placed on the ground that the defendants were liable for the consequences to the original consignors, whether the property was in them or not, because the carrier agreed with them to carry the goods safely, and the action was for the breach of that agreement. Unfortunately, however, the authority of this case was weakened by the case of Dawes v. Peck, decided not long after. In this case Lord Kenyon held that the proper party to bring the action against the carrier is the person having an interest in the goods, for he is the one who has really sustained. the loss. It is generally conceded that such a person may sue in tort, but it does not follow that thereby the consignor is prevented from suing on the contract he has made.

Though there are quite a few cases holding the contrary," the doctrine is now generally recognized, both on principle and authority, that, whatever the rights of others, the consignor may sue the carrier for breaches of the contract entered into between such carrier and the consignor. As was well said by Livingston, J., in a New York case: " "It would be without example to deny a party to whom an express promise is made, whether as trustee or in his own right, a remedy for its violation. This would produce the singular case of a party's having a right to break an engagement, without responsibility to him with whom it is made, merely because it is possible some other person may have a remedy against him; or, what would be more strange, it would make the very act which consummates the bargain between the shipper and master-that is, the delivery-destroy the remedy of the former on the contract.

A. 578; Southern Exp. Co. v. Craft, 49 Miss. 480, 19 Am. Rep. 4; CARTER v. SOUTHERN RY. CO., 111 Ga. 38, 36 S. E. 308, 50 L. R. A. 354, Dobie Cas. Bailments and Carriers, 273; Gulf, C. & S. F. R. Co. v. A. B. Patterson & Co. (Tex. Civ. App.) 144 S. W. 698. See cases cited in the preceding note.

85 Burrows, 2680.

48 Term R. (Eng.) 330.

Green v. Clarke, 12 N. Y. 343; Griffith v. Ingledew, 6 Serg. & R. (Pa.) 429, 9 Am. Dec. 444; Pennsylvania Co. v. Holderman, 69 Ind. 18; South & N. A. R. Co. v. Wood, 72 Ala. 451; Pennsylvania Co. v. Poor, 103 Ind. 553, 3 N. E. 253; McLaughlin v. Martin, 12 Colo. App. 268, 55 Pac. 195; Union Feed Co. v. Pacific Clipper Line, 31 Wash. 28, 71 Pac. 552; Union Pac. R. Co. v. Metcalf, 50 Neb. 452, 69 N. W. 961.

See 3 Hutch. Carr. §§ 1308-1314. See cases cited in notes 1 and 2. See also, Northern Line Packet Co. v. Shearer, 61 Ill. 263; Pennsylvania Co. v. Clark, 2 Ind. App. 146, 27 N. E. 586, 28 N. E. 208; Finn v. Western R. Corp., 112 Mass. 524, 17 Am. Rep. 128; Davis v. Jacksonville Southeastern Line, 126 Mo. 69, 28.S. W. 965.

7 Potter v. Lansing, 1 Johns. (N. Y.) 215, 3 Am. Dec. 310.

To whom the goods belong is of no importance if it be once conceded, which cannot be controverted, that the right of property may be in one, while another, by express agreement, may have a remedy for some negligence or misconduct in relation to it."

Nor is it necessary, in order to authorize the consignor to maintain an action against a carrier, where he has neither a general nor a special property in the goods shipped, that the carrier's contract with him should be an express one. The implied contract arising out of the delivery of the goods by the consignor to the carrier for transportation is entirely sufficient.

In the majority of cases, the consignor is not the owner of the goods. When this is true the consignor, who recovers on the contract against the carrier, is liable to the true owner of the goods for the amount recovered. A recovery by the consignor against the carrier is a bar to a subsequent action by the owner for the same wrong.10 The ultimate disposition of the amount recovered is no legal concern of the carrier, but is a question between the consignor and owner. The carrier, however, being in all cases liable on the contract to the consignor with whom such contract is made, must respond in damages to such consignor; but, having once fully responded, the carrier is exempt from being further sued. The action of the consignor who has no interest in the goods is an action on the contract; he cannot sue in tort."

8 Finn v. Western R. Corp., 112 Mass. 524, 528, 17 Am. Rep. 128; Texas & P. Ry. Co. v. Nicholson, 61 Tex. 491; Mobile & M. Ry. Co. v. Jurey, 111 U. S. 584, 4 Sup. Ct. 566, 28 L. Ed. 527.

Illinois Cent. R. Co. v. Schwartz, 13 Ill. App. 490; Ohio & M. R. Co. v. Emrich, 24 Ill. App. 245; Finn v. Western R. Corp., 112 Mass. 524, 17 Am. Rep. 128; American Roofing Co. v. Memphis & C. Packet Co., 5 Ohio N. P. 146; CARTER v. SOUTHERN RY. CO., 111 Ga. 38, 36 S. E. 308, 50 L. R. A. 354, Dobie Cas. Bailments and Carriers, 273.

10 CARTER v. SOUTHERN RY. CO., 111 Ga. 38, 36 S. E. 308, 50 L. R. A. 354, Dobie Cas. Bailments and Carriers, 273; Southern Exp. Co. v. Craft, 49 Miss. 480, 19 Am. Rep. 4. "The shipper is a party in interest to the contract, and it does not lie with the carrier who made the contract with him to say upon a breach of it that he is not entitled to recover the damages unless it be shown that the consignee objects, for without that it will be presumed that the action was commenced and is prosecuted with the knowledge and consent of the consignee, and for his benefit. The consignor or shipper is, by operation of the rule, regarded as a trustee of an express trust, like a factor or other mercantile agent, who contracts in his own name on behalf of his principal." Hooper v. Chicago & N. W. Ry. Co., 27 Wis. 81, 9 Am. Rep. 439. See, also, cases cited in the preceding note.

11 See cases cited in notes 1, 2, and 6. See, also, Wetzel v. Power, 5 Mont. 214, 2 Pac. 338; Fast v. Canton, A. & N. R. Co., 77 Miss. 498, 27 South. 525; P. Garvan v. New York Cent. & H. R. R. Co., 210 Mass. 275, 96 N. E. 717.

Consignee Presumed to Have Contracted with Carrier

In the absence of a contrary showing, there is a prima facie presumption that the consignee is the owner of the goods, and hence that the contract of transportation was made by the consignor on his behalf. Under these circumstances, the consignee is the real principal in such contract, and the consignor was acting merely as his agent. Therefore, under the well-known rules of agency, the consignee as the undisclosed principal may sue the carrier on the contract, although such contract was made by the carrier with. the consignor and in the latter's name.13 And this right of the consignee to sue the carrier on the contract, when it exists, is paramount to the similar right of the consignor.14

12 Merchants' Despatch Co. v. Smith, 76 Ill. 542; Thompson v. Fargo, 49 N. Y. 188, 10 Am. Rep. 342; Krulder v. Ellison, 47 N. Y. 36, 7 Am. Rep. 402; Brower v. Peabody, 13 N. Y. 121; Dows v. Greene, 24 N. Y. 638; Dows v. Perrin, 16 N. Y. 325; Sweet v. Barney, 23 N. Y. 335; Frank v. Hoey, 128 Mass. 263; Rowley v. Bigelow, 12 Pick. (Mass.) 307, 23 Am. Dec. 607; Smith v. Lewis, 3 B. Mon. (Ky.) 229; Arbuckle v. Thompson, 37 Pa. 170; Decan v. Shipper, 35 Pa. 239, 78 Am. Dec. 334; Congar v. Galena & C. U. R. Co., 17 Wis. 477; Dyer v. Great Northern Ry. Co., 51 Minn. 345, 53 N. W. 714, 38 Am. St. Rep. 506; Benjamin v. Levy, 39 Minn. 11, 38 N. W. 702; McCauley v. Davidson, 13 Minn. 162 (Gil. 150); Straus v. Wessel, 30 Ohio St. 211, 214; W. & A. R. Co. v. Kelly, 1 Head (Tenn.) 158; East Tennessee & G. R. R. v. Nelson, 1 Cold. (Tenn.) 272; East Line & R. R. Ry. Co. v. Hall, 64 Tex. 615; Strong v. Dodds, 47 Vt. 348, 356; Grove v. Brien, 8 How. 429, 12 L. Ed. 1142; Lawrence v. Minturn, 17 How. 100, 15 L. Ed. 58; Blum v. The Caddo, 1 Woods, 64, Fed. Cas. No. 1,573; Pennsylvania Co. v. Holderman, 69 Ind. 18; Madison, I. & P. R. Co. v. Whitesel, 11 Ind. 55; Scammon v. Wells, Fargo & Co., 84 Cal. 311, 24 Pac. 284; Webb v. Winter, 1 Cal. 417; South & N. A. R. Co. v. Wood, 72 Ala. 451; Dawes v. Peck, 8 Term R. (Eng.) 330; Evans v. Marlett, 1 Ld. Raym. (Eng.) 271; Coleman v. Lambert, 5 Mees. & W. (Eng.) 502, 505. As to suit by consignee named in bill of lading, see Lawrence v. Minturn, 17 How. 100, 15 L. Ed. 58; Butler v. Smith, 35 Miss. 457; Griffith v. Ingledew, 6 Serg. & R. (Pa.) 429, 9 Am. Dec. 444; Bonner v. Marsh, 10 Smedes & M. (Miss.) 376, 48 Am. Dec. 754. Suit in admiralty, see McKinlay v. Morrish, 21 How. 343, 355, 16 L. Ed. 100; Houseman v. The North Carolina, 15 Pet. 40, 49, 10 L. Ed. 653. See, also, Cleveland, C., C. & St. L. Ry. Co. v. Moline Plow Co., 13 Ind. App. 225, 41 N. E. 480; Pennsylvania Co. v. Poor, 103 Ind. 553, 3 N. E. 253.

13 New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. 344, 380, 12 L. Ed. 465; Sanderson v. Lamberton, 6 Bin. (Pa.) 129; Elkins v. Boston & M. R. Co., 19 N. H. 337, 51 Am. Dec. 184; Ames v. First Div. St. Paul & P. R. Co., 12 Minn. 412 (Gil. 295); Taintor v. Prendergast, 3 Hill (N. Y.) 72, 38 Am. Dec. 618; Ford v. Williams, 21 How. 287, 16 L. Ed. 36. See, also, Mouton v. Louisville & N. R. Co., 128 Ala. 537, 29 South. 602; Pennsylvania Co. v. Poor, 103 Ind. 553, 23 N. E. 253; Elkins v. Boston & M. R. Co., 19 N. H. 337, 51 Am. Dec. 184.

14 See Burriss & Haynie v. Missouri Pac. R. Co., 105 Mo. App. 659, 78 S. W. 1042; Dyer v. Great Northern Ry. Co., 51 Minn. 345, 53 N. W. 714, 38 Am. St. Rep. 506; McLaughlin v. Martin, 12 Colo. App. 268, 55 Pac. 195; Potter v. Lansing, 1 Johns. (N. Y.) 215, 3 Am. Dec. 310.

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