143 S.E. 242 | N.C. | 1928
Civil action to recover damages for an alleged breach of a contract of carriage.
This action was instituted 21 May, 1926, by the Star Furniture Company, Inc., to recover the value of a carload of furniture, delivered by it to the defendant on 13 July, 1925, at Lenoir, N.C. evidenced by bill of lading, for shipment and delivery to one S. Strassman of Philadelphia, Pa., which said furniture was destroyed by fire before leaving the point of origin and while on the defendant's sidetrack.
Defendant answered, denied liability, alleged that the fire which destroyed the furniture in question, before being moved from the industrial track, constructed primarily for plaintiff's benefit, originated in one of the buildings of plaintiff's furniture factory, through the negligence of plaintiff's agents, and the defendant set up a counterclaim for loss of the car and damage to its track.
Thereafter, by leave of court, S. Strassman was joined as a party plaintiff; an amended complaint was filed, to which the defendant demurred.
The material allegations of the amended complaint, so far as essential to a proper understanding of the legal questions involved, may be abridged and stated as follows:
1. That plaintiff, Star Furniture Company, consignor of the shipment of furniture, is a corporation with its principal place of business at Lenoir, N.C. and that S. Strassman, consignee of the shipment of furniture, is a resident of the city of Philadelphia, Pa.
2. That the defendant, Carolina Northwestern Railway Company, Inc., is a common carrier by railroad, engaged as such in interstate commerce and transportation.
3. That on 13 July, 1925, the defendant, in its capacity as a common carrier and in consideration of the payment of the usual rate of freight, received from the Star Furniture Company at Lenoir, N.C. a carload of furniture for shipment and delivery to S. Strassman, the consignee thereof, at Philadelphia, Pa.
4. That upon the delivery of the goods aforementioned, to the defendant, a bill of lading for same was executed by defendant and by it delivered *638 to plaintiff corporation, evidencing receipt and acceptance of said carload of furniture for transportation and delivery to the consignee therein named.
5. That subsequent to the receipt and acceptance of said furniture and the insurance of the bill of lading therefor, the same was destroyed by fire, without negligence on the part of plaintiffs or either of them, which said furniture was reasonably worth $2,390.00.
6. That within six months after delivery of said furniture to the defendant, the Star Furniture Company, on a form provided by the defendant for the purpose, made and presented to the defendants at the point of origin, as required by the bill of lading, a written claim for the loss of said property and the value thereof, and demanded payment of said claim, which was refused by the defendant "upon the alleged ground that it was not legally liable for the loss of said carload of furniture."
The defendant demurred to this amended complaint on the following grounds:
"1. There is a misjoinder of parties plaintiff to said suit for the reason there cannot be in this case a joint cause of action existing in both the consignor and consignee, there being no allegation that one party was the agent of the other.
"2. In that the complaint does not set forth facts sufficient to constitute a cause of action on the following grounds:
"(a) No right of action exists in favor of the Star Furniture Company for the reason that it is consignor of the freight in question, and title passed to the consignee upon the issuance of the bill of lading, and the Star Furniture Company had no title thereto after the issuance of said bill of lading.
"(b) Plaintiff, S. Strassman, has no right or cause of action as the complaint shows on its face that no claim was made and presented against said defendant for the loss of the said property, or the value thereof, by the said plaintiff S. Strassman within six (6) months after delivery of the furniture to the defendant in accordance with the terms of the bill of lading."
From a judgment overruling the demurrer, the defendant appeals, assigning error. after stating the case: It should be observed, at the outset, that we are not dealing with the merits of the controversy, but *639 with the sufficiency of the allegations of the complaint. Ballinger v.Thomas, ante, 517. The case is here on demurrer, restricted to the two grounds specified and designated therein. C. S., 512.
The demurrer was properly overruled on the first ground, i. e., of an alleged misjoinder of parties. It is no "defect of parties" to join unnecessary parties. Abbott v. Hancock,
The demurrer was properly overruled on the second ground also. It does not appear from the complaint that claim for loss must be filed by the consignee, or that such claim may not be filed by the consignor. It is provided by the "Carmack Amendment" to the Interstate Commerce Act (set out in full in Mann v. Transportation Co.,
We are not permitted to look beyond the allegations of the complaint, or travel outside the scope of the demurrer, in dealing with the present appeal. Brick Co. v. Gentry,
The question as to whether suit by the consignee, debated on brief, can be maintained, because not brought within the time limited in the contract, is not presented by the demurrer.
Affirmed. *640
