Alexandre v. Atlantic Coast Line R. Co.

• Decision Date: 12 March 1907
• Parties: ALEXANDRE v. ATLANTIC COAST LINE R. CO.
• Court: North Carolina Supreme Court

56 S.E. 697

144 N.C. 93

ALEXANDRE v. ATLANTIC COAST LINE R. CO.

Supreme Court of North Carolina

March 12, 1907

Appeal from Superior Court, Martin County; Long, Judge.

Action by C. Alexandre against the Atlantic Coast Line Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered.

Clark C.J., dissenting.

This action was begun before a justice of the peace by summons "for the nonpayment of the sum of $27.50 due by penalty as provided in section 2632, Revisal of 1905, and demanded by said plaintiff." From a judgment for plaintiff in the superior court, defendant appealed.

The following issues were submitted to the jury: (1) Did the defendant receive the goods for shipment, as alleged, at Jamesville, consigned to plaintiff, on the 10th of August 1906? (2) Did the defendant fail to transport and deliver said goods within a reasonable time? (3) Did defendant's agent, on the 14th of August, inform the plaintiff that the goods had not arrived, and mark them ""short"? (4) When did the defendant deliver the goods? The jury, by consent, responded affirmatively to the first and third issues, and to the fourth: ""August 20, 1906." Defendant objected to the second issue, and tendered, in lieu thereof, the following: "Did the defendant fail to transport said goods within a reasonable time?" The testimony tended to show that the goods, a crate of bottles and a barrel of bottles, were delivered to defendant at Jamesville to be shipped to plaintiff at Williamston, N.C. On August 14th defendant delivered to plaintiff "one crate of bottles and one barrel of bottles," and he paid the freight, 16 cents. When plaintiff opened the packages he found that they were not his property. He notified defendant's agent on the 17th of August. He said that they belonged to some one else. He looked and could not find plaintiff's goods, although they were on the defendant's platform at Williamston on the 14th of August. Defendant's agent, by mistake, marked the freight bill "short" on the 17th of August. He delivered the goods to plaintiff on the 20th of August. Jamesville and Williamston are on defendant's road, and about 11 miles apart; there being no intermediate stations. Plaintiff made demand of defendant's agent for the goods prior to the 20th of August, who told him that they were not there--looked and could not find them. Defendant moved for judgment upon the entire evidence. Motion denied. Defendant requested his honor to instruct the jury: "If they should find from the evidence that the goods in question were in fact transported from Jamesville, N. C., to Williamston, N. C the point of destination, within a reasonable time, although the defendant's agent told the plaintiff the goods were not there, on the 14th of August, and marked the freight bill 'short,' then the plaintiff is not entitled to recover in this action." The instruction was refused and defendant excepted. His honor, so the record states, "told the jury, in substance, that it was not only the duty of the defendant to transport the goods within a reasonable time, but also their duty to deliver them within a reasonable time." Defendant excepted to his honor's refusal to give the special instruction prayed, and to the submission of the second issue. From a judgment on the verdict defendant appealed.

H. W. Stubbs, for appellant.

CONNOR, J. (after stating the case).

The plaintiff sues for the penalty imposed by section 2632, Revisal 1905, upon any common carrier which shall "omit or neglect to transport within a reasonable time any goods, merchandise or articles of value received by it for shipment," etc. The words "reasonable time," for the purpose of fixing the standard of duty, is defined to be "the ordinary time required for transporting such articles between the receiving and shipping stations." A delay of two days at the "initial point," etc., is not to be charged against such transportation company as unreasonable, and shall be held prima facie reasonable, and a ""failure to transport within such time shall be held prima facie unreasonable." We had occasion, in Walker v. Railroad Co., 137 N.C. 163, 49 S.E. 84, to consider and, in so far as was necessary, upon the facts there presented, construe the statute. Mr. Justice Walker, writing for the majority of the court, said: "The word 'transport' does mean to carry or convey from one place to another, but it also means to remove--and this is one of the primary significations, according to the lexicographers." While Mr. Justice Douglas wrote a dissenting opinion upon other phases of the case, in which the chief justice concurred, he concurs in the construction put upon the word ""transport," in so far as it is involved in the present appeal, saying: "It is from the latin word 'transportare,' compounded from the words 'trans,' meaning over or beyond, and 'portare,' to carry. It does not mean simply to remove from one place, but includes also the idea of carrying to another place." For the purpose of disposing of this appeal, the adoption of either definition of the word "transport" leads us to the same conclusion. The Supreme Court of the United States in Gloucester Ferry Co. v. Penna., 114 U.S. 203, 5 S.Ct. 828 (29 L.Ed. 158), says: "Transportation implies the taking of persons or property at some point and putting them down at another." Webster defines the word "transport" thus: "To carry or bear from one place to another; to remove; to convey; as to transport goods; to transport troops." International Dict. 1530; Black's Law Dict. 1184. His honor was of the opinion that the word included delivery. Hence he submitted the second issue directed to the inquiry whether the defendant did, within a reasonable time, "transport and deliver" the goods, and, in accordance with that view, instructed the jury that it was the duty of the defendant, not only to transport the goods but to deliver them within a reasonable time. The exception to this ruling presents the question upon which the decision of this appeal depends. It is undoubtedly true that the common law imposes the duty upon every common carrier to receive, transport, and deliver all goods, merchandise, etc., offered for that purpose, and that for a failure to do either it is liable to an action for damages. For failing to receive goods, a penalty is imposed by section 2631, Revisal 1905.

We find, upon an examination of the authorities, that the word "deliver" is of entirely different origin and signification from the word "transport." To ""transport" an article, it must be received and retained by the person charged with the duty; whereas, to "deliver," the person intrusted with the possession of it must part with it. Hence, the word is compounded of "de" and "liberare," ""to set free; to set at liberty; to give over"--this of course importing that the duty of transporting has been discharged, completed, because the delivery can only be made after the transportation is complete. Webster, Inter. Dict. 386; Century Dict. vol. 2. "A delivery of an article consists in handing the article to the person to whom delivery is made." Bellows v. Folsom, 27 N.Y. Super. Ct. (4 Rob.) 43. "As between carrier and consignee, delivery implies the mutual acts of the two." United States v. McCready (C. C.) 11 F. 225.

Again it is evident that the Legislature had in mind the distinction between the duty to "transport" and to "deliver," because the former is the act of the carrier without the intervention or aid of the consignee; whereas, the latter cannot be accomplished without the concurrence of the consignee. A person upon whom the duty to transport is imposed is the sole actor; whereas, the duty to deliver necessarily involves the acceptance by the person to whom delivery is to be made, or, as said by the court, it "implies the mutual acts of the two." The idea of parting with the possession and control of an article or paper writing as an essential element in the delivery of it is illustrated in many instances; as in the delivery of a deed which is separate and distinct from signing and sealing, but equally essential to its validity. Daniel, J., in Moore v. Collins, 15 N.C. 388, says: "A deed may be delivered, by words, without any act of delivery by the grantor, as if the writing sealed lieth upon the table, and the feoffor or obligor saith to the feoffee or obligee, 'Go and take up the said writing,' etc. *** The words must amount to an authority or license, in the person addressed, to take possession of the deed, and a reception of the instrument by the person spoken unto must follow the speaking of the words. Whenever the words evidence an assent in the feoffor or obligor to part with the writing as a deed, and, at the same time, evidence a willingness that the person spoken unto should take the writing as a deed, and a reception of the writing by the person addressed follows the speaking, then the words amount to a delivery." The Legislature could not have intended to impose a penalty upon the carrier for not doing something, which necessarily involved the presence and acceptance by the consignee or his agent. If the consignee live in the country, or at some distance from the depot, or for any cause fail to call for the goods within the four days, it cannot be that the carrier should be liable to a penalty for not delivering, when there was no person to whom delivery could be made. It is for this reason that, upon the completion of the transportation--that is, the carrying from the point of shipment to the destination--he must, when called for, deliver. If not called for, a new duty with different measure of liability is imposed upon the carrier. He must place the goods in a warehouse or other proper place, and care for them until called...