There was evidence tending to show that plaintiff had sold to (219) one M. J. Blue a package of harness worth $24.50, to be delivered at Efland, N.C. the stipulation as to delivery at Efland being part of the contract of sale. The plaintiff had same shipped by defendant company from Burlington, N.C. to Efland, N.C. prepaying the freight charges and taking a bill of lading therefor as shipped to M. J. Blue. That defendant failed to transport and deliver said harness within ordinary time, in accordance with the contract, and plaintiff, having made good the loss to the purchaser, M. J. Blue, by supplying him with other harness, filed his claim as required by the statute, and instituted this action to recover for the loss of the harness and for the penalty for wrongfully failing to transport freight, allowed by section 2632, Revisal of 1905.
Under the charge of the court there was a verdict for plaintiff for the value of the goods and the penalty. Judgment on the verdict, and defendant excepted and appealed.
After stating the case: The statute has been upheld as a constitutional enactment in Walker v. R. R., 137 N.C. 163; Stone v. R. R., 144 N.C. 220, and other decisions of like import, and the principle upon which it rests has been affirmed in Efland v. R. R. (defendant's appeal), ante, 135. It is chiefly urged for error by appellant that plaintiff is not the "party aggrieved," under the principle announced in Stone v. R. R., supra, in that it was held: "When goods are delivered
to a common carrier for transportation, and bill of lading issued, the title, in the absence of any direction or agreement to the contrary, vests in the consignee, who is alone entitled to sue, as the `party aggrieved,' for the penalty given by section 1467, Revisal." This is undoubtedly a correct decision, applying, as stated, where it appears that goods (220) are shipped and bill of lading taken to a consignee, without more. As indicated in the opinion, however, where the facts show, as in this case, that from the attendant circumstances or the terms of the agreement some person other than the consignee is the one whose legal right is denied and who is alone interested in having the transportation properly made, a different rule obtains and the case comes within the principle of Summers v. R. R., 138 N.C. 295. In that opinion it was said: "In giving the penalty to the party aggrieved, the statute simply designates the person who shall have the right to sue, and restricts it to him who, by contract, has acquired the right to demand that the service be rendered. `The party aggrieved is the one whose legal right is denied.'" Nor is it a valid objection to this recovery that defendant may not have been made aware of the facts which gave to plaintiff the right to sue as the "party aggrieved," under the statute. As shown in Rollinsv. R. R., ante, 153, neither the issue as to defendant's actual knowledge nor the evidence tending to support it are, as a general rule, relevant to the injury. In the absence of any counterclaim or offset in favor of defendant against the person who, as consignee, appears to be the "party aggrieved," under the contract, if the case is tried and determined in accordance with law and in a way to protect defendant from a second recovery, it is not material whether the real party in interest was known to defendant or not.
We are of opinion that the authorities referred to are decisive against the defendant's position, and we find no error in the proceedings below that gives appellant any just ground of complaint.
No error.
Cited: Davis v. R. R., 147 N.C. 70; Box Factory v. R. R., 148 N.C. 422;McRackan v. R. R., 150 N.C. 332; Gaskins v. R. R., 151 N.C. 21;Lumber Co. v. R. R., 152 N.C. 74; Buggy Corporation v. R. R., ib., 122;Elliott v. R. R., 155 N.C. 236, 237; Withrow v. R. R., 159 N.C. 226;Ellington v. R. R., 170 N.C. 37; Tilley v. R. R., 172 N.C. 365;Whittington v. R. R., ib., 505.
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