Am. Cigarette & Cigar Co. Inc v. Garner

• Decision Date: 04 June 1948
• Docket Number: No. 737.,737.
• Citation: 47 S.E.2d 854,229 N.C. 173
• Court: North Carolina Supreme Court
• Parties: AMERICAN CIGARETTE & CIGAR CO., Inc. v. GARNER.

47 S.E.2d 854

229 N.C. 173

AMERICAN CIGARETTE & CIGAR CO., Inc.

v.GARNER.

No. 737.

Supreme Court of North Carolina.

June 4, 1948.

Appeal from Superior Court, Durham County; W. J. Bone, Judge.

Suit by American Cigarette & Cigar Company, Inc., against M. C. Garner, trading and doing business under the firm name and style of M. C. Garner Truck Lines, to recover for loss of goods delivered to defendant for shipment interstate. Judgment for defendant, and plaintiff appeals.

Judgment reversed.

Suit by the shipper for loss of goods delivered to defendant, a common carrier, for shipment interstate.

Jury trial was waived and under stipulation the trial judge found that the defendant, a common carrier, received from the plaintiff in Durham, N.C., a shipment of cigarettes for transportation by motor truckand trailer to a point in New Jersey. Plaintiff paid the freight and received bill of lading therefor. En route a major portion of the goods, in value $29,888.35, was stolen by persons unknown and was never delivered. The court found the loss was not caused by any act or negligence of the carrier or his agent, and adjudged that the plaintiff recover nothing.

Plaintiff excepted and appealed.

Fuller, Reade & Fuller, of Durham, for plaintiff-appellant.

Ruark & Ruark, of Raleigh, for defendant-appellee.

DEVIN, Justice.

The plaintiff's appeal presents the question whether the finding by the court that the shipment of goods was received by a common carrier for transportation in interstate commerce, and bill of lading issued therefor, without limitation or exception, and that, due to robbery by unknown persons, the goods were lost en route and never delivered was alone sufficient to impose liability for the value thereof upon the defendant carrier.

The common law rule holds a common carrier, in the absence of special contract, liable for loss of goods in transit, unless the carrier can show that the loss was attributable to an act of God, the public enemy, the fault of the shipper, or inherent defect in the goods shipped. This rule obtains in this jurisdiction as to intrastate shipments. Merchant v. Lassiter, 224 N.C 343, 30 S.E.2d 217, 218. In that case it was said, "A carrier is an insurer against loss of goods received for shipment * * * It is bound to safely carry and deliver merchandise received and accepted for transportation Meredith v. Seaboard Air Line R. Co., 137 N.C. 478, 50 S.E. 1, and in case of loss plaintiff need only prove delivery to and nondelivery by the carrier, " citing Morris v. American Ry. Express Co., 183 N.C. 144, 110 S.E. 855; Moore v. Southern R. Co, 183 N.C. 213, 111 S.E. 166; Perry v. Seaboard Air Line R. Co, 171 N.C. 158,.88 S.E. 156, L.R.A.1916E, 478.

In the case at bar the shipment was interstate; hence "rights and liabilities of the parties depend upon acts of Congress, the bill of lading, and common-law' rules as accepted and applied in Federa: tribunals." Cincinnati, N. O. & T. P. R. Co. v. Rankin, 241 U.S. 319, 36 S.Ct. 555, 558, 60 L.Ed. 1022, L.R.A.1917A, 265; White v. Southern R. Co, 208 S.C. 319, 38 S.E.2d 111; 165 A.L.R. 988. Accordingly it is argued here that the language of the Carmack and Cummins Amendments to; the Hepburn. Act, 49 U.S.C.A. § 20(11), declaring the carrier liable for any loss of goods in transit "caused by it, " and that if loss be due to "carelessness or negligence" of the carrier no notice of claim should be required as condition precedent to recovery, indicates a modification of the common law rule, but we think the reference to negligence as affecting the carrier's liability applies only in case of failure to give required notice of claim, Cincinnati, N. O. & T. P. R. Co. v. Rankin, 241 U.S. 319, 36 S.Ct. 555, 60 L.Ed. 1022, L.R.A.1917A, 265; Adams Exp. Co. v. Croninger, 226 U.S. 491, 33 S.Ct. 148, 57 L.Ed. 314, 44 L.R.A, N.S, 257; Missouri K. & T. R. Co. v. Harriman Bros, 227 U.S. 657, 672, 33 S.Ct. 397, 57 L.Ed. 690; Chesapeake & O. R. Co. v. Thompson Mfg. Co, 270 U.S. 416, 46 S.Ct. 318, 70 L.Ed. 654; Gillette Safety Razor Co. v. Davis, 1 Cir, 278 F. 864; Lehigh...