155 N.C. 148 | N.C. | 1911
Lead Opinion
after stating the case. In Harper v. Express Co., 148 N. C., pp. 87-90, tbe Court, in speaking to the question of damages, recoverable by reason of wrongful delay in shipment of goods, said: “Where the goods shipped have a market value, and there is nothing to indicate the specific purpose for which they were ordered, these damages are irsually the difference in tbe market value of tbe goods at the time for delivery, and that when they were in fact delivered. We have so held in the case of Davidson Development Co. v. R. R., 147 N. C., 503, and Lee v. R. R., 136 N. C., 533, is to the same effect. When, however, the goods are ordered for a special purpose or for present use in a given way, and these facts are known to the carrier, he is responsible 'for the damages fairly attributable to the delay and in reference to the purpose or the use indicated. And it is
And in Bowers’ case, supra,, tbe ruling was as follows: “1. A complaint alleging that tbe defendant, a common carrier, failed to safely carry certain articles of freight according to contract, and 'so negligently and carelessly conducted in regard to tbe same tbat it was greatly damaged,’ states facts sufficient to constitute a tort,” and in Williams’ case, supra, Associate Jusiice Walicer, for the Court, said: “It is established, therefore, by tbe authorities tbat when tbe carrier has wrongfully set tbe passenger down short of or beyond bis destination, or has failed to stop for him, and has thereby imposed upon him tbe necessity of reaching bis destination by other means, the carrier must respond in damages for tbe wrong, whether tbe action be brought for tbe breach of tbe contract or for tbe tort, and tbe rule applies in this case if tbe plaintiffs presented themselves at tbe proper place and gave tbe required signal at such time as enabled tbe engineer to stop tbe train for them at tbe station,” citing 3 Hutchinson on Carriers (3 Ed.), sec. 1429. There is nothing in the record which confines the plaintiff to recovery for a breach of contract. On the contrary, tbe entire facts are set out by tbe pleader, including specific statement of tbe special damages claimed. And in various sections of tbe complaint tbe delay is alleged to have been caused by tbe carelessness and negligence of the defendant company and its agents. In such case tbe plaintiff, if the facts justify it, may recover on tbe theory of tort or contract. Speaking to this question, in Williams’ case, supra, it is further said: “All forms of action are abolished, and we have now but one form for the enforcement of private rights and the redress of private wrongs which is denominated a civil action, and the Court gives relief according to tbe facts alleged and established.” In tbe case of Hansley v. R. R., 117 N. C., p. 570, a case much relied upon by tbe defendant, tbe Court chiefly considered and passed upon the right of a passenger, on a breach of contract of carriage by a common carrier, to punitive or exemplary damages and tbe question involved in this
New trial.
Concurrence Opinion
concurring in result. The damages recoverable in an action for a breach of contract are such as naturally flow from the breach and such special and consequential damages as are reasonably presumed to have been within the contemplation of the parties at the time the contract was entered into. Williams v. Telegraph Co., 136 N. C., 82; Johnson v. R. R., 140 N. C., 574. And the same rule is applied in actions for the
In an action based upon such a tort, reasonable foresight is essential to original liability, but it has no place in determining to what consequences the liability shall attach. Drum v. Miller, 135 N. C., 204.
In Lewark v. R. R., 137 N. C., 383, an action for damages resulting from delay in transportation, this Court states the rule to be: “When one violates his contract he is liable for such damages as are caused by the breach, or such damages, as being incidental to the breach as the natural consequence thereof, may have been in contemplation of the joarties when the contract was made.” In Development Co. v. R. R., 147 N. C., 503, Mr. Justice Holte says: “Consequential damages are only recoverable when they are the natural and probable consequences of the carrier’s default. And ordinarily such damages are only considered natural and probable when they may be reasonably supposed to have been in contemplation of the parties at the time the contract was made.” This was said in an action for negligent delay in transjwrtation of freight, which was treated by the learned judge as a breach of contract, or tort growing out of contract, as was done in Lee’s case, in Ijewarlc’s case and numerous other cases decided by this Court.
The error in the opinion of the^court in the present case, I think, is in assuming that notice by the plaintiff of the particular damages and subsequent delay created a liability independent of the contract entered into by Gurganus and the defendant. The plaintiff’s right to sue is determined upon prin
Tbe former decision in tbe Hansley case, tbat for negligent failure to transport a passenger to bis destination, tbe passenger’s right of action is ex contractu and not in tort, is affirmed.
In Kennon v. Telegraph Co., 126 N. C., 232, tbe present Ghief Justice says: “It is immaterial under our system of practice whether tbe action is in tort for tbe negligence in tbe discharge of a public duty or for breach of contract for prompt delivery, for tbe recovery in either case is compensation for tbe
The plaintiff’s action in this case, being based upon breach of contract or tort growing out of contract, and the damages being restricted to such as were in the contemplation of the parties when the contract was made, the evidence of notice of special damages was properly excluded. Such notice cannot affect the liability of the parties after the performance of the contract has been entered upon. But if such evidence is admitted the sainé result must follow, because it would be the duty of the court to instruct the jury that the notice given was insufficient to charge the defendant with liability for special damages. Where the testimony with regard to notice is .uncontradicted and is clear and distinct, the question of the sufficiency of the notice is for the court. R. R. v. Johnson & Fleming, 94 S. W. (Tenn.), 600.
“It may be stated as the well settled rule,” says Hutchinson on Carriers, sec. 1367, “that special damages can be recovered from the carrier when the transportation has been delayed only where it is shown that the shipper informed the carrier, at the time the contract was made, of the special circumstances requiring expedition in shipment. And although the carrier may have been notified of such special circumstances in time to have prevented a delay, if such notice was given after the contract of transportation had been entered upon, it would not operate to modify the contract or subject the carrier to liability for special damages arising from a subsequent delay. The fact that the carrier was notified of the special circumstances demanding greater diligence is thus seen to be a crucial one, and that the carrier was so informed must be alleged and proved.”
“Notice to a carrier, after goods have been shipped, of circumstances which render special damages a probable result of a delay in their delivery, does not operate to modify the original contract so as to render the carrier liable for such damages, even in the event of a subsequent unreasonable delay.” Bradley v. R. R., 94 Wis., 44.
In R. R. v. Johnson & Fleming, 94 S. W., 600, Chief Justice Beard, of the Supreme Court of Tennessee, says: “Notice to the
The case of Bourland v. R. R., 99 Texas, 407, is not authority for the position suggested in the opinion of the Court. It is held in that case that where notice of such circumstances as will occasion special damages is given the carrier after the contract to carry has been performed, and after the goods have accordingly arrived at their destination and are ready to be delivered, he will be liable for such special damages if he negligently fails to make delivery of the goods. In* this case the Supreme Court of Texas accepts the decision in R. R. v. Belcher, 89 Texas, 428, as containing a correct statement of the law upon the question of liability for special damages where notice is given after the contract has been made and transportation commenced, but
In this case the defendant is notified, after entering upon the performance of the contract, that the special damages would result, and was for the first time notified that such damages would result to a company whose name nowhere appears in the contract of shipment and whose existence was probably unknown to the defendant. If such notice is sufficient to charge the defendant with liability for special damages, then the great case of Hadley v. Baxendale has power only to vex unsuspecting parties who regard its principles as established and enforcible in our courts.
The facts are not sufficient to bring this case within the decision of Lumber Co. v. R. R., 151 N. C., 23, and other cases in this Court, charging the carrier with special damages for delay upon the ground that the character and circumstances of shipment were sufficient to give notice of such damages. There was nothing about this shipment to give the defendant the slightest intimation that the plaintiff company intended to conduct a peanut-cleaning business, and had employed hands to install and operate the machinery and had rented a house for that purpose. It was reasonable for the defendant to suppose that Gurganus was receiving the machinery for sale to another party, or that he was receiving it as agent for the shippers. In fact the purpose for which the shipment was intended was a pure matter of conjecture to the defendant.
For wrongful delay in the transportation of goods having a market value the damages usually supposed to be in contemplation of the parties is the difference in value of the goods at the time when they should have been delivered and when they were delivered. In the absence of appreciable loss, the interest on the money invested in the goods themselves for the time of the delay would be the correct measure. Lee v. R. R., 136 N. C., 533; Development Co. v. R. R., 147 N. C., 503. If the jury should find in this case that the plaintiff has been injured by the negligence of the defendant, the measure'of damages should be fixed by the principle of these cases. Upon the evidence as now presented the plaintiff is not entitled to special damages. However, his Honor was in error in instructing the jury that the plaintiff could recover only nominal damages, for which there should be a new trial.
Concurrence Opinion
concurring. A bill of lading is “a written acknowledgment by the common carrier of the receipt of certain goods and an agreement, for a consideration, to transport and to deliver the same at a specified place to a person named or to his order.” Elliott on R. R., Yol. IY, sec. 1415.
It is then both a receipt and a contract, and there are but two stipulations in the contract: 1. To transport. 2. To deliver.
The law, however, recognizes that railroad property is in some measure devoted to a public use, and is, therefore, subject to public regulation. As was said by Rodman, J., in Branch v. R. R., 77 N. C., 349: “They are granted great privileges in consideration of the performance of certain duties to the public. They enjoy a virtual monopoly of the carriage of freights within a certain distance. There could not be a clearer case of private property devoted, for a valuable consideration, to a public use, and consequently subject to public regulation.”
“He (the common carrier) exercises a public employment, and has duties to the public to perform.” York Co. v. R. R., 70 U. S., 112.
“Property does become clothed with a public interest when used in a manner to make it of public consequence and affect the public at large. When, therefore, one devotes his property to a use in which the public has an interest, he, in effect, grants to the public an interest in that use, and must submit to be controlled by the public for the common good, to the extent of the interest he has thus created.” Munn v. Illinois, 94 U. S.
“Railroads are common carriers and owe duties to the public.” Joy v. R. R., 138 U. S., 51.
These duties to the public are sometimes enforced by statute and sometimes by the principles of the common law, and they are independent of contract.
“The duties of the common carrier as such do not rest upon contracts, but are imposed by law.” Elliott on R. R., Vol. IV, sec. 1454.
“The liability oi a common carrier does not rest in his contract, but is a liability imposed by law. It exists independently of contract, having its foundation in the policy of the law, and it is upon this legal obligation that he is charged as carrier for the loss of property,-intrusted to him.” Merritt v. Earle, 29 N. Y., 122.
There are two: (1) To carry safely. (2) To deliver within a reasonable time.
The extent of the liability as to the first duty is clearly stated by Justice Brown in Hollingsworth v. Skelding, Receiver, 142 N. C., 247. He quotes the following extract from the opinion of Chief Justice Faircloth, in Daniel v. R. R., 117 N. C., 602: “Carriers of passengers are insurers as to their passengers, subject 1° a few reasonable exceptions. They are held to exercise the greatest practicable care, the highest degree of prudence, and the utmost human skill and foresight which has been demonstrated by experience to be practicable. They are so held upon the ground of public policy, reason and safety to their patrons. The exceptions are the act of God and the public enemy. If these be the proximate cause, and without any neglect on the part of the carrier, the carrier is not liable. He is against all perils bound to do his utmost to protect and prevent injury to his passengers,” and after holding that this is erroneous as applied to passengers, he says: “The rule laid down by the late Chief Justice applies to the transportation of freight and all classes of inanimate objects only.” It should be added that there is no liability on the carrier if the injury is caused by the negligence of the shipper, or is due to the inherent qualities of the articles transported.
The second duty imposed by law is to deliver within a reasonable time, and a failure to do so is negligence. Boner v. Steamboat, 46 N. C., 216. The distinction as to the (degree of liability in the performance of these duties is clearly stated by Pearson, Chief Justice, in Boner v. Steamboat Co., supra. He says: “It is said that the defendants are common carriers, and in regard to them the law makes an exception, and holds them liable as insurers, except against the act of God, and the Ring’s enemies. This is so; and the question is, does.their liability as insurers extend to the time of delivery? or is it confined to the safe delivery of the goods? The case before the Court, when Lord Holt delivered his famous opinion, concerned the safe delivery
On account of the fact that the goods are in possession of the carrier, and the shipper cannot go with them, and cannot know what the conduct of the carrier is, proof of delay makes out a prima facie case of negligence, and it is incumbent on the carrier to excuse the delay. Parker v. R. R., 133 N. C., 340.
¥e have then in the case of a shipment of freight, a contract between the shipper and the carrier, by which the carrier has agreed to transport and to deliver, and the law has imposed on the carrier the duty to carry safely, and to deliver within a reasonable time, and our next inquiry is, what is the remedy for a breach of the duty imposed by the law? I think the shipper may, at his election, sue in contract or in .tort. He may treat the obligations imposed by law as entering into and becoming a part of the contract of carriage, in which event his action would be for breach of contract, or he may sue for a breach of the public duty, which has caused him special damage, and his action would be in tort. Elliott on E. E., Yol. IY, sec. 1693, says: “Where there is a breach both of contract and of duty imposed by law, as in case of loss or injury by a common carrier, the ifiaintiif may elect to sue either in contract or in tort.”
We are not Avithout authority in our State that an action for a breach of duty imposed by laAv is in tort, and that in many cases, on the same facts, a party may sue in tort or contract.
In Robinson v. Threadgill, 35 N. C., 41, and in Bond v. Hilton, 44 N. C., 308, Nash, Chief Justice, says: “Where the law,
These cases are approved in Solomon v. Bates, 118 N. C., 315.
It appears, therefore, that the property of the common carrier is affected with a public use; that out of this grows the power to regulate the performance of its obligations; that in the exercise of this power the law has imposed the duty when it undertakes to transport freight to carry safely and to deliver within a reasonable time; and that an action to recover damages for a breach of duty imposed by law is in tort.
This duty, as it seems to me, does not arise out of contract, but is imposed because the carrier has devoted its property in part to a public use. If so, I think the rule laid down in the opinion of the court is just, and with the limitations imposed, no hardship can arise from its application.
It requires notice to be given to the carrier, while the goods are in its possession, of the facts out of which the special damages will arise, and gives it a reasonable time after notice within which to deliver, and the carrier is not liable for the special damages unless, after notice and under the conditions then existing, it negligently fails to deliver.
The expressions in different opinions opposed to this view are based upon the case of Hadley v. Baxendale, which has been quoted with approval so often that it approaches rashness to question it.
I may suggest, however, that it is stated in the opinion in that ease that “the only circumstances here communicated by the plaintiff at the time the contract was made were that the article to be carried was the broken shaft of a mill, and that the plaintiffs were the millers of that mill,” while the report of the case, as contained in Eng. Rul. Cases, Yol. Y, p. 503, shows that “the plaintiffs’ servant told the clerk that the mill was stopped and that the shaft must he sent immediately, and in answer to the
It was held that the notice was not sufficient to charge the defendant with special damage. I doubt if this ruling would be sustained to-day, and think the evidence indicated that there was a contract to deliver within a particular time. The decision was rendered in 1854, within thirty years after the first steam railway began to operate in England, when railroading was in its infancy, and the facilities for transportation were limited, and while the rule adopted as to damages for breach of contract generally ought to be adhered to, it is doubtful if it was intended to apply to the contracts of common carriers under the conditions existing to-day.
It was then important for the carrier to know, at the time the goods were received, the circumstances requiring diligence, that it might prepare to meet them, while to-day the carrier is required to receive goods tendered for shipment and to be prepared to transport.
The carrier has the goods in its possession; is in the performance of a duty that is continuous until delivery, and has or ought to have the facilities for transporting, and it has the opportunity of avoiding loss by exercising reasonable diligence. It would seem that it ought to be held to this degree of responsibility.