60 S.E. 722 | N.C. | 1908
Lead Opinion
This is an action to recover the penalty given by section 2632 of the Revisal for delay in shipping lumber. The case is not governed by the principle of Marble Co. v. Railway, decided at this term, as argued by the defendant’s counsel, for it does not appear that any part of the transportation was beyond the limits of the State. The lumber was shipped from Lattimore, or Washburn’s Siding, to Gastonia, all being in this State. The agreement between the plaintiff, as consignor, and ITenry & Bradley, the consignees at Gas-tonia, was that the latter should not be required to pay for the lumber until it arrived at Gastonia. The plaintiff was, therefore, the party aggrieved, within the meaning of section 2632, and can maintain this action for the penalty. Summers v.
The constitutionality of section 2632, and similar provisions of law imposing penalties 'for a breach of duty in transporting goods by common carriers, is too firmly established to be now questioned. Branch v. Railroad, 77 N. C., 348; Walker v. Railway, 137 N. C., 163; Stone v. Railway, 144 N. C., 220; Morris v. Express Co., at this term; Cardwell v. Railway, supra. So that the plaintiff might have a good cause of action for the penalty, nothing else appearing, if-there was a failure in this case to transport the lumber within a reasonable time, and we would affirm the judgment but for the fact of error in the charge of the court. The issue submitted and the answer thereto were as follows: “What amount, if any, is the plaintiff entitled to recover of the defendant on account of the failure to promptly ship the carload of lumber ?” Answer: “Seventy dollars.” The form of that issue is objectionable, as it presupposes that there had been a failure to perform its duty by the defendant as carrier, and merely required the jury to ascertain the amount of the penalty incurred for the default. Denmark v. Railroad, 107 N. C., 185. We suggested in Hamrick v. Railway, at this term, that two issues be submitted in cases of this kind: “1.. Was the freight transported and delivered within a reasonable time ? 2. In what sum is the defendant indebted to the plaintiff?” “In this way,” said Justice Connor, for the Court, “the attention of the parties and the jury is drawn to the real questions in'issue.” But, waiving the defect in the issue, we think the charge of the court was erroneous. The jury were instructed that, if they believed the evidence, they should answer the issue “Yes,” as a matter of law. This was all of the charge, and it was duly excepted to by the defendant. The charge and the issue do not correspond, and the response directed to be made would not be an appropriate one, in any view, to the issue as now framed. It only called for an assessment of the.
If it appears at the next trial that any part of the transportation was outside the borders of the State, although the initial and terminal points of shipment may be in this State, the case will be controlled by our decisions at this term, in Marble Co. v. Railway and Ice Co. v. Railway, as such a transportation, under the rule laid down in the latter case, which follows Hanley v. Railway, 187 U. S., 617, is interstate traffic, and will not, therefore, be within the provision of section 2632 of the Revisal, as construed by us in Marble Co. v. Railway.
We again call attention to the form of the charge, as given in this case, in connection with the recent decision of this Court in State v. Railway, at this term. For the error in the charge of the court a new trial is awarded.
New Trial.
Concurrence Opinion
concurring in result: The form of the issue, “What damage (or what amount), if any, is the plaintiff entitled to recover ?” has been so long used and in so many different kinds of actions, and its meaning is so well understood, that the advisability of now calling it in question is doubtful. It could only add to the number of issues, without any corresponding benefit.
When, as in this case, more than one inference can be drawn from the evidence, a charge to the jury, “If you believe the evidence, answer the issue ‘Yes’ (or ‘No/ as the case may be),” is erroneous. But when only one inference can be drawn such charge would be correct. The long-settled practice is thus summed up by Brown, J., in a recent case (Clark v. Traction Co., 138 N. C., 80), where, speaking for a unanimous Court, he says: “His Honor instructed the jury, ‘if
Lead Opinion
The facts sufficiently appear in the opinion of the Court.
This is an action to recover the penalty given by section 2632 of the Revisal for delay in shipping lumber. The case is not governed by the principle of Marble Co. v. R. R., ante, 53, as argued by the defendant's counsel, for it does not appear that any part of the transportation was beyond the limits of the State. The lumber was shipped from Lattimore, or Washburn's Siding, to Gastonia, all being in this State. The agreement between the plaintiff, as consignor, and Henry
Bradley, the consignees at Gastonia, was that the latter should not be required to pay for the lumber until it arrived at Gastonia. The plaintiff was, therefore, the party aggrieved, within the meaning of section 2632, and can maintain this action for the penalty. Summers p. (70) R. R.,
The constitutionality of section 2632, and similar provisions of law imposing penalties for a breach of duty in transporting goods by common carriers, is too firmly established to be now questioned. Branch v. R. R.,
If it appears at the next trial that any part of the transportation was outside the borders of the State, although the initial and terminal points of shipment may be in this State, the case will be controlled by Marble Co.v. R. R., ante, 53, and Ice Co. P. R. R., ante, 61, as such a transportation, under the rule laid down in the latter case, which followsHanley v. R. R.,
We again call attention to the form of the charge, as given in this case, in connection with the recent decision of this Court in S. v. R. R.,
New trial.