65 S.E. 757 | N.C. | 1909
The facts are sufficiently stated in the opinion. *135 This action was brought to recover damages for alleged injury to certain live stock (a carload of mules and horses) shipped from Morristown, Tenn., to Selma, N.C. A bill of lading was given by the defendant for the shipment, one of the stipulations of which is as follows: "That as a condition precedent to any right to recover any damage for loss or injury to said live stock, notice in writing of the claim therefor shall be given to the agent of the carrier actually delivering said live stock, wherever such delivery may be made, and such notice shall be so given before said live stock is removed or is intermingled with other live stock."
The evidence of the plaintiff tended to show that the mules were in good condition when they left Morristown and were damaged when he received them at Selma, but his agent drove them away (138) from the defendant's premises without giving the notice required by the bill of lading. His witness, W. R. Long, who was his agent, in the purchase of the mules and horses and in receiving them at Selma, testified: "I did not give the agent of the defendant, or any one else, any notice of claim for damages or injury to this car of stock. The first notice I gave any one of any claim for damage or injury to the stock was through my attorneys, some time after I received the stock and had sold part of same. I brought the stock through the country from Selma to Smithfield, a distance of four miles. I do not know, of my knowledge, when any notice of claim was filed with the defendant." The plaintiff put the bill of lading in evidence.
There was a verdict in favor of the plaintiff for $150, and judgment was given thereon. The defendant, having duly excepted, appealed to this Court.
The exception of the defendant raises the two questions, whether the stipulation in the bill of lading requiring notice to be given to the defendant before removal from its premises of the goods transported is valid, and whether a failure to give it will defeat the plaintiff's recovery. These questions we consider as having been decided by this Court adversely to the plaintiff's contention. In Selby v. R. R., 113 N.C. at pages 594-595, Justice Burwell, for the Court, in the course of a very able discussion of the very question herein presented, says: "It seems to us that this condition, imposed upon the plaintiff by a contract of his own making, founded upon a valuable consideration moving to him, contravenes no sound legal policy and is not unreasonable. It is not in any sense a stipulation that the defendant carrier shall be exempted for the effects of its negligence or the negligence of its servants in the performance of *136
those duties towards the plaintiff assumed in the contract, nor is it a requirement that any injury that has been done to plaintiff's stock while in defendant's care, under the terms of the bill of lading, shall be adjusted in the presence of an officer of the defendant company before the property is removed from the station, and hence the case of Capehartv. R. R.,
This rule could not avail the defendant in Jones v. R. R.,
The court erred in holding that the failure to give notice did not defeat the plaintiff's recovery, because the clause inserted in the bill of lading requiring notice to be given was invalid, or, if valid, did not apply to the facts of this case. If it does not apply to this case, it could not apply to any case, as it was not denied that the stock was taken away from the defendant's yard without giving the notice, and that was the point upon which the case was made to turn in the court below, the judge holding that it was immaterial whether the notice was given or not.
The consideration for this stipulation in the contract, assuming that a special consideration is required to support it, was the reduced rate of charge which was allowed for the carriage.
The motion to nonsuit should have been sustained.
Action dismissed.
Cited: Kime v. R. R.,