DISSENTING OPINION.
McCulloch, C. J.It is conceded that the liability of the surety depends upon the solution of the question whether or not the contract of suretyship falls within the provision of the statute which authorizes the carrier to surrender the consignment of freight without surrender of the bill of lading. This is so because the surety can not be held liable if the contract involves the doing of an act which is prohibited by law and made a criminal offense by, the statute of the State. The test is, primarily, whether or not the carrier violated the terms of the statute by making a delivery of the freight to the elevator company without surrender of the bill of lading.
The first legislation on this subject was the act of March 15, 1887, which provides that bills of lading shall be negotiable unless the nonnegotiability thereof be endorsed on the face thereof, and that it shall be a criminal offense for a common carrier to deliver goods without surrender of the bill of lading.
The case of Nebraska Meal Mills v. St. Louis S. W. Ry. Co., 64 Ark. 169, dealt entirely with the question of the civil liability of the carrier under this statute, the question of criminal liability not being involved; and the court, in construing the statute, held that it was solely for the benefit of a transferee of the bill of lading where the freight was consigned by the vendor to the vendee, and that a delivery to the consignee without surrender of the bill of lading did not render the carrier liable to the consignee who had retained possession of the bill of lading. Judge Riddick, in delivering the opinion of the court, said: “In this case the appellant could have protected itself against the failure of the consignee to pay for the meal by making the consignment to its own order. ’ ’
In the present case, the shipper resorted to that method of self-protection and consigned the goods to its own order.
In Arkansas Southern Railway Company v. German National Bank, 77 Ark. 482, the court again passed upon the terms of the statute, aud, in doing so, said: “At common law a bill of lading is a muniment of title to tbe goods or property therein specified; is a symbol or representative of tbe goods; ‘when properly endorsed and delivered, with'tbe intention of passing the title to them, is a symbolic or constructive delivery of tbe goods themselves;.’ and, when assigned, tbe carrier, having notice of the assignment, becomes bound to deb ver tbe goods to tbe assignee. If tbe goods, by tbe terms of tbe bill of lading, are deliverable to tbe order of tbe shipper, tbe carrier should not deliver except upon production of tbe bill of-lading properly endorsed by tbe shipper; ‘for- this notice is to tbe carrier that the shipper intends to retain in bis power tbe ultimate disposition of tbe goods.’ ”
Tbe General Assembly of 1907, realizing tbe hardships and inconvenience which might result from strict enforcement of the statute, enacted tbe statute now under special consideration, which modified to some extent tbe provisions of tbe act of 1887. This modification applies only to the criminal feature of tbe old statute, and leaves tbe civil liability declared in tbe -old statute entirely unimpaired. Tbe new statute is very simple in its provisions. It merely declares that “it shall be lawful for a shipper or consignee of goods -to make, execute and deliver to, and tbe carrier to take and receive a good, sufficient and valid bond * * * conditioned that the shipper or consignee shall within a reasonable time thereafter deliver to tbe carrier tbe original receipt and bill of lading issued for said goods, or shall pay tbe value of said goods to tbe carrier upon demand,” and that upon tbe execution of such bond “it shall be lawful for tbe carrier to deliver up tbe said goods to tbe shipper or consignee without requiring the immediate surrender of said original bills of lading and receipts.”
Tbe statute, it will be seen, authorizes a delivery only to tbe ‘ ‘ shipper or consignee. ’ ’ Those terms have a welU known significance, and there should be no doubt or uncertainty about what tbe lawmakers meant. The whole legislation in this State on this subject relates to receipts and bills of lading, that is to say, contracts of bailment by warehousemen and contracts of affreightment by carriers which are in writing and capable of being assigned. In speaking of a bill of. lading, the lawmakers used terms which are applicable to that kind of a contract, and there can be no doubt about the meaning of the terms “shipper or consignee” when used in such an instrument. The word consignee is defined as “the person to whom goods or other property sent by carrier are consigned or addressed.” Century Dictionary. The shipper, within the meaning of the statute, is evidently the person who consigns the goods and is mentioned in the bill of lading as the consignor.
In M. & L. R. R. R. Co. v. Freed, 38 Ark. 614, this court gave a clear and express definition of the meaning of these terms as follows: “It will simplify the matter to bear in mind when the terms ‘consignor’ and ‘consignee’ are used, that by the former is meant a vendor who ships, and by the latter, a purchaser to whom they have been sent. ’ ’ In that case, the court was dealing with the question of the right of stoppage in transitu, and after laying down the rule that, according to all the authorities, the right existed only in behalf of the vendor, added the following: “It is the real interest on one side and liability on the other, which gives the right; not the technical designation of the parties in the bill of lading.” The last was said with reference to the right of stoppage in transitu, which right was held to be entirely in the vendor, and it does not modify the clear definition given by the court of the words consignor and consignee.
Now, the delivery in this case was not to the consignee, and the carrier was not protected by the bond. The shipper consigned the goods to his own order, and therefore was both shipper and consignee. The fact that the bill of lading contained a direction to notify the elevator company did not change in the slightest degree the relation of the parties to the contract of shipment or make the elevator company the consignee within the meaning of the statute. This is plain under the authorities.
The New York Court of Appeals, in the case of Furman v. Union Pacific Rd. Co., 106 N. Y. 579, speaking through Mr. Justice Peckham, said: “Here is no statement that Zueca Brothers are the consignees. The very presence of the word 'notify/ in its relation to them, shows that they are not intended as the consignees. If they were, the word is wholly unnecessary. It is the duty of the carrier to notify the consignee of the arrival of the goods. To place in the bill of lading a direction to notify a certain person, to whom, if consignees, it was the carrier’s duty to deliver, or at least to notify of the arrival of the goods, is a plain notice that (in the absence of further directions) they are not the consignees.”
To the same effect see Joslyn v. Grand Trunk Ry. 51 Vt. 95, where the court held that a designation of a person as one to be notified did not render him the consignee and authorize a delivery to him.
In one of the cases cited by the majority in their opinion (Gillespie v. Winbery, 4 Daly 318), it is said: “Consignor and consignee, in the ordinary mercantile acceptation of these words, signifies the shipper of merchandise and the person to whom it is addressed.” When the Legislature uses words of well-known signification, the presumption is to be indulged that they use those words with reference to that meaning. Nor does the fact that there was a contract of sale between the shipper and the elevator company, and that the goods were shipped to Little Bock with the intention of delivering the same to the elevator company in consummation of that sale, make the elevator company the consignee within the meaning of the statute. In using the words shipper and consignee, the Legislature evidently meant the persons designated as such in a bill of lading, for that is the sole guide of the parties who deal with it. Only when used in this meaning is it possible for the carrier to ascertain who is entitled to give bond and receive the freight without the surrender of the bill of lading. The delivering agent of the carrier knows, without inspection of the bill of lading, who the shipper and the consignee are, for that information is given in the way-bill. Any other interpretation of these words leaves it entirely uncertain as to whom a delivery may be made, for if we are allowed to look beyond the terms of the contract itself it necessarily follows that the carrier can deliver to any one who asserts a claim to the property and is willing to give bond as provided in the statute.
The majority are entirely correct, I think, in saying that “to the ordinary layman the words shipper and consignee would seem to encircle all the parties to a transportation contract with whom the carrier has to reckon.” They might well have added that not only laymen, but also those who have technical knowledge of those terms would interpret them to mean the parties to the contract as shipper and consignee; but it does not follow, I think, that the use of those terms authorizes a delivery to any person who claims to be the ultimate consignee. They only apply, in my opinion, to the shipper or the consignee designated in the written contract between the parties. The carrier has no other method of designating the consignee except by the terms of the writing itself or by a surrender of the bill. of lading which evidences the title to the property.
The views of the majority seem to be predicated upon some notion of commercial methods of handling shipments of this kind; and because there is a custom in the sale of goods of this character to consign to the shipper’s own order, that the Legislature must have.had such a custom in view and meant to include within the meaning of the word consignee a person to whom the goods are ultimately to be delivered. I think this is a very strained interpretation of the plain language of the lawmakers, and that it is wholly unjustified in construing the statute. We have nothing to do with the policy of the law. in permitting deliveries by a carrier to any one who asserts the right to take the property and is willing to give bond in accordance with the statute. The question of policy is entirely for the Legislature, and we are not justified, I think, in straining the language of the lawmakers in order to establish what may be believed to be a wise policy. I am by no means sure that, even if the court had such power, it is adopting the wise policy in the control of transactions of this Idnd. It is the custom in dealings of this kind for the shipper to retain control of his property until he sees fit to transfer the bill of lading. The shipper in most instances may and doubtless has good reasons for adopting that method of doing business, and the privilege ought not to be conferred on the carrier, and in my judgment was not intended to be conferred by the Legislature, to deliver the goods to any one who claims the same and is willing to give bond. The contract of sale is, in instances of this kind, executory and the shipper may have good reason for withholding delivery; and the civil liability, which results only as compensation to the extent of the value of the goods, may not in all oases be adequate for the inconvenience or for special damages which may result from the delivery.
I can not bring myself to an agreement with the majority, who say, in the opinion handed down today in a companion case to this (Chicago, R. I. & P. Ry. Co. v. The Title Guaranty & Surety Co.), that “the legislative purpose was not so much to preserve the memorials of rightful deliveries as it was to provide indemnities for wrongful deliveries by requiring false claimants to pay the value of the goods which they have illegally obtained.” I do not think that the legislative purpose was merely to provide indemnity for wrongful delivery,-but the dominant idea of the Legislature was to prevent wrongful deliveries by an imposition of both civil and criminal liability. It was thought that by the enactment of this statute the rigor of the law would be to some extent modified by permitting delivery to a shipper or consignee who, in the absence of an assignment of the bill of lading, would be rightfully entitled to the delivery. The statute was, in other words, passed merely for the convenience of the shipper or consignee so that in cases of delay of transmission of tbe bill of lading tbe person designated in tbe contract of shipment might give ■ bond and receive tbe property without waiting for tbe delayed evidence of title. It was far from tbe purpose of tbe lawmakers, it seems to me, to open wide tbe doors by permitting a carrier to deliver property to anybody who may lay claim to it and is willing to give bond.