Aydlett v. . R. R.

89 S.E. 1000 | N.C. | 1916

WALKER, J., dissenting. The following issues were submitted to the jury:

1. Has the plaintiff been damaged by the negligence of the defendant Norfolk Southern Railroad, by reason of transporting said sweet potatoes in an unsuitable and unfit car, as alleged? Answer: "Yes."

2. What damage, if any, is the plaintiff entitled to recover of the defendant Norfolk Southern Railroad? Answer: "$256.55, with interest from 23 December, 1913."

Similar issues were submitted as to the other two defendants and were answered in like manner. From the judgment rendered, the defendants appealed. This action is brought to recover damages to a car-load of sweet potatoes, delivered by the plaintiff to a steamboat company at Brinsons Landing in North Carolina, consigned to Schafer Bros. at Louisville, Ky. The evidence is to the effect that they were delivered to and receipted for by the Norfolk Southern Railroad Company in apparent good order on 16 December, 1913, and were loaded by the (49) said company in a car furnished by it which had just previously been used in transportation of a load of flour, and for that purpose had been lined with paper, which was not removed when the potatoes were loaded in the same car.

In consequence of this the testimony shows that the ventilation of the car was cut off and it was practically air-tight. This caused the potatoes to rot in the car. The shipment was routed by the Norfolk Southern via Norfolk and Western and Louisville and Nashville to Louisville, Ky. On account of the bad condition of the potatoes on arrival, the consignees refused to receive them, and notified the consignor, the plaintiff, at once. It was agreed that the contract of sale should be rescinded and the potatoes sold on account of the plaintiff.

1. The defendants contend that the plaintiff cannot recover, because the plaintiff is not the real party in interest, and that the suit, if maintainable at all, should be brought by the consignee, Schafer Bros.

As a general rule, it is true, where goods are shipped upon an open bill of lading, the title passes to the consignee at the time they are delivered to the carrier, and any ensuing damage must be recovered by the consignee. Stone v. R. R., 144 N.C. 228.

Notwithstanding this general rule, it is open to the consignor to show that the goods were shipped on consignment or that owing to peculiar circumstances, by agreement between himself and the consignee, the title had revested in the consignor while the goods were in transitu, and that the consignor has a pecuniary interest in the proper performance of the contract of shipment.

The identical case is presented in R. R. v. Guano Co., 103 Ga. 590, where it is held that where a consignee of freight refuses to receive goods on account of damage done to them in the hands of the common carrier, and the goods are subsequently thrown back on the hands of the consignor, the latter has a right to bring an action for such damages against the carrier. This case is cited with approval by this Court in Buggy Co. v. R. R.,152 N.C. 122.

2. The defendants contend that they are not initial carriers, and that by virtue of the Carmack Amendment to the Interstate Commerce Act they are exempt from suit by the plaintiff. If this contention is correct, then the said amendment, admittedly passed in the interest of the shipper, would be entirely nugatory and utterly fail to accomplish the purpose for which it was enacted.

It was not intended to exempt any carrier legally liable from suit. In this case the potatoes were delivered to the steamboat company and by that carrier delivered at Elizabeth City directly to the Norfolk Southern Railroad. It was this defendant that furnished the car in which the potatoes were loaded, and, if the evidence is to be believed, negligently failed to prepare the car for such shipment. It was (50) practically air-tight, thereby causing the potatoes to rot before they reached the point of destination. Mewborn v. R. R., 170 N.C. 205;Brinson v. Kramer, 169 N.C. 425; R. R. v. Sperber Co., 117 Md. 595.

3. It is next contended that the plaintiff cannot recover because the claim was not filed with the initial carrier, to wit, the steamboat company, within four months. The evidence shows that a written claim was filed with the defendant the Norfolk Southern Railroad Company within the time required by law, and if it is not sufficiently definite, as is now contended, it does not appear that the said defendant ever made any objection to it or demanded a more particular statement. A written claim was also filed with the other two defendants.

Practically all of the evidence shows that the injury was occasioned by the negligence of the defendant the Norfolk Southern Railroad Company, and that that defendant received full notice of the claim in writing. Nothing further than that can reasonably be required of the plaintiff.

We have held that the stipulation on the bill of lading requiring such notice is a reasonable and valid requirement, and we decided in Grocery Co.v. R. R., 170 N.C. 241, that the notice of claim must be filed where the shipment originated. In that case the defendant was the initial carrier, to whom no notice was given, nor was the claim "filed by the consignor at the point of origin, even if he had any right to file it at all, and certainly he did not have this right as consignor" (page 243). That action was brought to recover a penalty given by a penal statute, which must be strictly construed. It was not brought to recover damages from a carrier that had caused the loss and with whom claim had been duly filed.

The defense in this case is based, not on a statute, but on the contract of shipment, that declares that "Claims for loss, damage, or delay must be made in writing to the carrier at the point of delivery or at the point of origin within four months after delivery of the property, or, in case of failure to make delivery, then within four months after a reasonable time for delivery has elapsed. Unless claims are so made, the carrier shall not be liable."

The initial carrier and the last carrier are thus made the agents of all the other carriers for the purpose of filing claims for damage. In our judgment that provision was not intended nor can it have the effect to preclude the claimant from filing his claim with and from suing the carrier that actually caused the injury. In this case it is undisputed that the potatoes were delivered to the defendant the Norfolk Southern, in good condition, and that carrier caused the injury by furnishing an unventilated car.

(51) It is true, the initial carrier was the steamboat company and that no claim was filed with that company, but as it was filed with the Norfolk Southern, the carrier that received the potatoes from the steamboat company and caused the damage, we think the stipulation in the bill of lading was substantially complied with. Surely, notice to the agent may be dispensed with when notice to the principal is given. To hold otherwise would be "sticking in the bark." Cassante ratione legiscessat et ipsa lex.

If the injury had not been caused by the negligence of the Norfolk Southern, then the contention of defendant that notice of claim must have been filed with the steamboat company, in order to bind the Norfolk Southern as well as other carriers, would be more reasonable.

Upon a review of the whole record, we find

No error.