
    Constantine C. Fast v. Canton, Aberdeen & Nashville Railroad Co.
    Common Carriers. Damage to freight. Ownership. BUI of lading.
    
    The real owner of goods damaged in transit may recover in tort for the wrong, although he be not named in the bill of lading as either consignor or consignee. The bill of lading is not conclusive of ownership.
    
      From tbe circuit court of Monroe county.
    irlos. EugicN's 0. Sykes, Judge.
    Fast, tbe appellant, was tbe plaintiff in tbe court below; tbe railroad company, tbe appellee, was defendant there. The facts are sufficiently stated in tbe opinion of tbe court.
    
      George G. Paine, for appellant.
    Tbe court erred in granting tbe peremptory charge. Even conceding that tbe evidence showed, that tbe appellant was neither tbe consignee nor tbe consignor of tbe live stock, yet tbe charge should have been denied, because tbe suit is in tort and not ex' contractu. Walters v. Mobile, etc., B. B. Go., 74 Miss., 539; 1 Rapalje & Mack’s Digest Railroad Law, p. 624, secs. 56, 57 and 59. Tbe testimony shows appellant was tbe owner of all tbe animals; be bad the right to use the stock and sell them in transit.
    
      Mo,yes & Harris for appellee.3
    A judgment of this court in favor of tbe plaintiff for recovery by him would not protect the company against a suit by tbe consignor and consignee, who are not parties to tbe proceeding.
    ■ Tbe facts, as stated by tbe plaintiff, were that be went to St. Louis to purchase mules and horses; that he did not have tbe money to pay for them, and tbe .Western Sale & Feed Stable Oo. told him it was all right, be could take tbe mules and horses and sell them and then pay tbe company for them; but tbe company took tbe precaution to retain title to the property throughout, by taking a bill of lading, in which tbe company named itself as consignor and consignee, thus retaining tbe title to the property throughout.
    For these reasons, we think tbe plaintiff should have failed in tbe suit, because be has failed to show title, and that lies at tbe very foundation of bis cause "of action.
   'Whitfield, J.,

delivered the opinion of the court.

It was error to grant tire peremptory instruction. The fact that the consignor and consignee named in the bill of lading was the Western Sale & Feed Stable Co. was not conclusive as to ownership; that is explained by the testimony of appellant, lie testifies positively that the live stock belonged to him, and the bill of lading ivas written up as it was to secure the Western Sale &• Feed Stable Go. for a small balance on some of the stock bought from them, but that he had full authority to sell the live stock. This is not an action on the contract, but an action of .tort, for damages, in which the real owner must sue. Waters v. Mobile, etc., R. R. Co., 14 Miss., 534; Kansas City, etc., R. R. Co. v. Cantrell, 70 Miss., 329. The case of Teams v. Illinois, etc., R. R. Co. is wholly unlike this on the testimony as to injury.

Reversed ancl remanded.  