50 S.E. 1 | N.C. | 1905
The plaintiff, on 16 February, 1904, delivered to the defendant railway company at Charlotte, N.C. a quantity of household goods and furniture, to be shipped to New Bern, N.C. and prepaid the freight thereon to the last-named point. On 3 March, 1904, the goods, etc., were delivered to the plaintiff at New Bern, by the A. C. L. Railroad Company in a damaged condition. Plaintiff testified, and for the purpose of disposing of this appeal his testimony is to be taken as true, that the furniture was carefully packed. That he told defendant's agent at Charlotte that the goods consisted of his household furniture and clothing of his family, and he would like to have them shipped by first train. That he received the goods on the morning of 3 March — they having arrived on the afternoon of 2 March. That Charlotte is 187 miles from Wilmington, the terminus of defendant's road. That Wilmington is 90 miles from New Bern. That Wilmington is the starting point of the A. C. L. Railroad. The plaintiff offered testimony in regard to the damage sustained. He proposed to show the condition of the goods upon their arrival at New Bern as compared with the condition when delivered to the defendant at Charlotte. Objection by defendant. The court asked plaintiff's counsel if he proposed to offer evidence tending to show that the goods were in a damaged condition when delivered by the defendant to the A. C. L. Railroad Company. Counsel replied that he had no evidence on the point, but relied on the length of time shipments were on defendant's road to infer the injury which he wished to show occurred. The court sustained the objection. Plaintiff excepted.
Testimony was introduced in regard to the damage sustained (480) by plaintiff. The record presents several exceptions based upon the exclusion of evidence of special damages. At the conclusion of the evidence the defendant moved for judgment of nonsuit. Motion allowed. Plaintiff excepted and appealed.
After stating the facts: The plaintiff sues for injury to his goods and for damages sustained by unreasonable delay in their delivery. *354
The grounds upon which judgment of nonsuit was rendered do not appear upon the record. From the defendant's brief we gather that it was contended that the delay was not in excess of the time allowed by chapter 590, Laws 1903, and Rule 10 of the Corporation Commission deducting the number of days allowed for "intermediate points," Sundays and holidays. The act of 1903 provides that the carrier shall not omit or neglect to transport goods received by it and billed, for a longer time than four days, nor allow any such goods to remain at any intermediate point for more than forty-eight hours, unless otherwise provided for by the Corporation Commission. For a violation of the act the party aggrieved may sue for a penalty. It is to be noted that the basis of this action is the alleged breach of the duty imposed by the common law upon carriers to safely carry and, within a reasonable time, deliver goods tendered them for that purpose. For a failure to perform this duty the person injured has a cause of action in which he may recover such damages as he sustained within the reasonable contemplation of the parties to the contract. To this common-law duty the Legislature added a statutory duty, fixing, for that purpose, a definite time within which such duty should be performed, giving to the person injured an action for a fixed penalty. "The act does not supersede or alter the (481) duty of the company at common law. The penalty in the case provided for is superadded. The act merely enforces an admitted duty." Branche v. R. R., 77, N.C. 347. Neither the construction of the act of 1903 nor the rule made by the Corporation Commission are before us for construction. What is meant by the words "intermediate points" is not very clear. It would work a singular result if they should be so construed that an act intended to enforce "an admitted duty" and expedite shipment of freight should give to a common carrier the right to consume fourteen days in carrying household goods which it was requested "to ship by first train" — a distance of 277 miles — with only one terminal point requiring change. We should be slow to hold that because the statute prohibits the carrier from holding the goods more than forty-eight hours at "any intermediate point," it could — without any suggestion that there was any necessity for detaining it at all — hold it for the extreme limit at each of such points, or that in these days of rapid transit the carrier could be said to discharge its duty by consuming fourteen days, deducting two Sundays and a holiday, to carry goods from Charlotte to New Bern in this State. The plaintiff's right to maintain the action is clear. The plaintiff did not introduce any bill of lading, therefore the contract of carriage is dependent upon the construction given to his testimony. He says: "I had my furniture carefully packed and had it delivered to the defendant's depot at Charlotte, N.C. *355
for shipment on 16 February, 1904. I was along at the time of delivery. I received a bill of lading; I told the agent that the goods consisted of my household and kitchen furniture and clothing of my entire family, and that I would like for him to ship by first train. The Coast Line Railroad delivered the goods to me in New Bern. When I delivered my freight the agent, before he would receive the shipment, demanded and required me to prepay the charges on them, which I did." The (482) goods could have arrived from Charlotte to New Bern in three days if shipped. The defendant admits the receipt of goods at Charlotte, N.C. to be shipped to plaintiff at New Bern. It does not admit the quantity or value. The questions presented by the testimony are, What was the contract between plaintiff and defendant? What duty was assumed by defendant, and upon whom does the burden of proof rest to show the breach thereof? The motion for nonsuit admits that the goods were delivered to and received by the defendant company at Charlotte on 16 February, 1904, for shipment to New Bern; that they were delivered to plaintiff by the A. C. L. Railroad at New Bern on 3 March, 1904, in a damaged condition. That Wilmington is the terminus of defendant road and that the A. C. L. Railroad is the connecting line from Wilmington to New Bern. That the goods could have arrived from Charlotte to New Bern in three days if shipped. No bill of lading or other writing was introduced by either party. We are called upon to decide the questions presented by invoking the principles of the common law respecting the relative rights and duties of the parties. If we were permitted to be guided by the law as declared in Muschamp v. R. R., 8 Mees. and W., 421, we should find no difficulty in holding that, upon the facts testified to by the plaintiff, the defendant contracted to carry the goods from Charlotte to New Bern and was liable for any unreasonable delay in doing so and any damage to the goods, whether such delay or damage occurred while in its possession or in the possession of A. C. L. Railroad Company. This is the settled English rule which has been adopted by many courts in this country. It must be conceded, however, that a majority of the American courts, including the Supreme Court of the United States, have not followed Muschamp's case. Hutchison on Carriers, sec. 149; 6 Cyc., 479. The doctrine known as the (483) American Rule is thus stated: "In the absence of any other contract than such as is generally to be implied from the acceptance of the goods for carriage, the obligation of the carrier extends only to the transportation to the end of its route and a delivery then to the next succeeding carrier to further or complete the transportation. In order to be bound further, there must be a positive agreement, either express or implied, extending the liability." Hutchison on Carriers, sec. 149. *356
Among the cases cited to sustain the text are Phillips v. R. R.,
Smith, C. J., lays down the proposition which he regards as established in respect to the liability of carriers for goods shipped beyond their lines. He concludes as follows: "Where no association exists and no special contract is made, and goods are delivered to a road for transportation over it, though to a place beyond its terminus, the carrier discharges its duty by safely conveying over its own road, and then delivering to the next connecting road in the direct and usual line of common carrier toward the point of ultimate destination." Phillips v. R. R., supra, Lindley v. R.R.,
The principle is stated by Mr. Justice Brown in U.S. v. R. R.,
In Brintnall's case, the goods having been lost, the question arose upon which of the several connecting roads the loss occurred. We can see no reason why the same rule adopted in that case should not apply where the delivery is delayed or the goods damaged. The reason of the law is the same in both cases — the knowledge or information in respect to the time and place of loss, injury, or delay being peculiarly within the knowledge of the defendant. 1 Greenleaf Ev., sec. 79.
This Court has applied the principle in prosecutions for sale of liquor without license. S. v. Morrison,
This case comes clearly within the rule which throws upon the defendant the burden of showing, or at least introducing evidence (487) tending to show, that it has discharged its duty. The goods are placed in the defendant's care and control, put into its car, carried over its road, and delivered to its agent at Wilmington. The plaintiff could not accompany them on the route, nor is it possible for him to show, save by the agents and the books of the defendant, the time of delivery or their condition when delivered to the Atlantic Coast Line. It is said that he should seek for his evidence from the latter road. The same difficulty confronts him. He would find it a difficult undertaking to show the fact. He would not know which of its agents to summon, or what paper, books, or records they should bring. On the contrary, it is not unreasonable to assume that when the goods were delivered to the Coast Line the defendant took a receipt for them, showing date and condition of the goods, and that this is in its possession. We can see no reason why it should not be required to repel the prima facie case, as was the trespasser or retailer who relies upon a license. In Burwell v. R. R.,
When this Court adopted the view maintained by the defendant inPhillips' case, supra, which permitted the first carrier to deliver the goods to the connecting carrier and relieve itself of further liability, we feel quite sure that it did not contemplate that the first or contracting road, as in this case, receiving the entire cost of transportation, could compel the shipper to cast about in the dark seeking for some one to sue, when his goods were unreasonably delayed and delivered in a damaged condition.
Chapter 46, Laws 1897, has no application to this case. In the absence of any bill of lading limiting liability, the defendant was an insurer of the goods, and hence liable for the damage if it occurred on its line. We fail to see that the act works any change in the law. It is uniformly held by the courts that when it is shown that goods delivered for shipment are shown to have been injured (489) *360 while in the possession of the defendant carrier, the law raises a presumption that such injury was caused by the negligence of the defendant. The question here is as to the mode of proof that the goods were delayed or injured while in the defendant's possession. His Honor should have permitted the plaintiff to show, if he could, the damage, etc., and in the absence of any testimony by defendant, he should have instructed the jury that they would be justified in finding that such delay and injury occurred while the goods were in the defendant's possession.
We forbear to discuss the exceptions to the exclusion of other testimony. We simply hold that there was error in excluding the proposed testimony in regard to the condition of the goods when delivered to the defendant at Charlotte and when delivered to the plaintiff at New Bern and in directing judgment of nonsuit.
Error.
Cited: Furr v. Johnson,