62 S.E. 515 | N.C. | 1908
The complaint contains two causes of action — one charging the defendant as a common carrier and a second count charging it as a warehouseman. The defendant demurred to both causes of action. From a judgment overruling the demurrer the defendant appealed. The facts alleged in the first cause of action, which, for the purposes of the hearing only, are admitted by the demurrer to be true, appear to be substantially as follows: "That on 6 June, (392) 1907, the plaintiff delivered to the defendant, in good condition, at its station in Dunn, two boxes, containing a moving-picture outfit, consigned to the plaintiff, at Duke, N.C. a station on defendant's road, which boxes and contents the defendant agreed to safely transport and deliver to plaintiff at destination; that they arrived at Duke on the same day, late in the evening — too late for plaintiff to remove the same on that day; that soon after the arrival of the boxes at Duke, N.C. on the same evening, 6 June, 1907, after deposit of the same in defendant's warehouse and before plaintiff had been notified of their arrival or had time to remove the same, the boxes were destroyed by fire." The question raised by the demurrer is one which has been much debated by jurists, and about which they are not agreed, as to when the liability of a common carrier of freight ends and its liability as a warehouseman begins. Some courts hold that when the transit is ended and the goods deposited in the warehouse of the carrier the liability as such terminates and the more modified liability of warehouseman begins. The leading case in this country entertaining that view is from Massachusetts Court, Norway Plains Co. v. R. R., 61 Am. Dec., 423, where the subject is considered at length by Chief Justice Shaw. A comprehensive note, citing many cases, is to be found to the case of Schmidtv. Blood, 24 Am. Dec., 145, which cites authorities taking the same view.
Another class of cases holds that placing the goods in the warehouse alone does not discharge the company from its liability as a common carrier until the consignee has had reasonable time after their arrival to inspect and take them away in the ordinary course of business. The leading case holding this view was decided, in a very elaborate opinion, upon almost the same state of facts as the Norway Plains case by the *293
Supreme Court of New Hampshire (Moses v. R. R.,
And still there is another class of cases which hold that the liability of the company as carrier continues until the consignee has been notified of the arrival of the goods and has had a reasonable time in the ordinary course of business within which to remove them. This view is maintained byJudge Cooley, in a most elaborate and able opinion, in McMullan v. R. R.,
In 1905 the Supreme Court of Michigan unanimously adopted the views ofCooley and Christiancy in the case of Walters v. R. R.,
Not only does the great weight of authority in this country (394) sustain the views of Judge Cooley, but such is the English and Canadian law. Mitchell v. R. R., 10 L. R., Q. B., 256; Chapmanv. R. R., 5 Q. B. D., 278; Richardson v. R. R., 10 Ont. Rep., 369; 45 Am. and Eng. Ry. Cases, 413. Mr. Hutchinson, referring to the English law on this subject, says: "No trace is there to be found of the distinction which has been made in this country in favor of railway companies, as common carriers, which converts them into mere warehousemen, without notice to the consignee. Notice, it is there held, is necessary to effect this change of character and liability; and after such notice, if the consignee fails to call for the goods, the carrier becomes, as to them, a warehouseman merely. And it is to be gathered from the *294 cases that it is the universal course of business there, with this class of carriers, either to deliver personally or to send to the consignees what are there denominated advice notes, informing them of the arrival of the goods; and that until this is done the company remains subject to the liability of a common carrier." 2 Hutchinson on Carriers, p. 792. See, also, 4 Elliott, p. 146, where the cases are collected, showing that most of the courts of this country follow the English precedents.
The rule subjecting common carriers to this strict responsibility as insurers is founded on broad principles of public policy and convenience, and, as said by Chancellor Kent, "It was introduced to prevent the necessity of going into circumstances impossible to be unraveled." 2 Kent Com., 602. "It is a politic establishment," says Lord ChiefJustice Holt, in his celebrated judgment in Coggs v. Bernard, 2 Lord Raymond, 918, "contrived by the policy of the law for the safety of all persons, the necessity of whose affairs obliges them to trust to these sort of persons, that they may be safe in their ways of dealings; for else the carrier might have opportunity of undoing all persons who had any dealings with him, by combining with thieves, etc., and yet doing it in such a clandestine way as would not be possible to be discovered." (395) Of course, the danger from loss by collusion is not near so great in these days as in the semibarbarous times, but upon this point it is well said by the Supreme Court of New Hampshire, in Moses v.R. R.,
What length of time will be considered reasonable for the removal of the goods is a question not now presented. It may, however, be said that no fixed or definite rule can be laid down, but it must depend in great measure upon the circumstances of each case. When the facts are undisputed, it becomes a question to be determined (396) by the court, as one of law; but where they are disputed and unsettled, the question must be submitted to a jury. Roth v. R. R.,
We do not think that this question was presented or has heretofore been determined by this Court in the case of Alexander v. R. R.,
Our decision renders it unnecessary that we consider the demurrer to the second cause of action. Suffice it to say that we think a cause of action is defectively stated in it, and may be easily remedied by amendment, if necessary.
The defendant will answer over. The ruling of the Superior Court is
Affirmed.
Cited: Jones v. R. R., post., 582; Bank v. R. R.,