Gwyn Harper Mfg. Co. v. Carolina Cent. R. Co.

• Decision Date: 23 May 1901
• Parties: GWYN HARPER MFG. CO. v. CARCLINA CENT R. CO. et al.
• Court: North Carolina Supreme Court

38 S.E. 894

128 N.C. 280

GWYN HARPER MFG. CO. v. CARCLINA CENT R. CO. et al.

Supreme Court of North Carolina

May 23, 1901

Appeal from superior court, Lincoln county; Timberlake, Judge.

Action by the Gwyn Harper Manufacturing Company against the Carolina Central Railroad Company and others. From a judgment in favor of plaintiff, defendants appeal. Reversed.

Where the testimony is conflicting, the credibility of witnesses is for the jury.

D. W Robinson, for appellants.

S. G Finley, for appellee.

DOUGLAS J.

This is an action for the recovery of 20 bags of flour lost in transit. The plaintiff alleges in its complaint (which is apparently sustained by the evidence) that it is the assignee of the bill of lading for a large amount of flour shipped from Circleville, Ohio, to J. A. Durham & Co., at Lenoir, N C., all of which was delivered, except the 20 bags said to have been lost. The answer denied every allegation of the complaint, either directly or for want of knowledge. As an additional defense, the answer alleged "that no claim for loss or damage was made by plaintiff above named within 30 days after the delivery of the property, or within 30 days from the discovery of the loss, as set forth and required in the bill of lading and contract under which the said property and flour were shipped." The assignments of error were to the admission of evidence, to the submission of issues and the direction of the verdict in favor of the plaintiff. The following is the statement in the record as to the issues. "The defendant tendered the following issues, which were refused by the court, to wit: (1) Were the goods of plaintiff lost while in the custody of defendants? (2) What is the value of the same? In place of the issues tendered by defendants, plaintiff tendered the following issues, which his honor answered. The issue and answer are: "Are the defendants indebted to the plaintiff? If so, how much? Ans. $38.50."

We see no error in the admission of Exhibits A, B, C, and D, which were properly identified, and appear to be part of the records of one or the other of the different companies composing the through freight line. Exhibits A, B, and C seem to be official reports of officers of the companies directly relating to the subject-matter of the action, while Exhibit D is the claim of loss filed by the plaintiff as required by the bill of lading. The papers are certainly relevant and material, and, we think, are equally competent. The same may be said of the depositions of the witnesses Crites and Kyle. In an action for the value of goods lost in transit, it is sometimes difficult to comprehend how the testimony of the shipper that he actually delivered the goods to the common carrier can be considered "incompetent and irrelevant." The defendant contends that the plaintiff is barred of any recovery, on account of the following clause in the bill of lading, to wit: "Claims for loss or damage must be made in writing to the agent at point of delivery promptly after arrival of the property, and if delayed for more than 30 days after the delivery of the property, or after due time for the delivery thereof, no carrier hereunder shall be liable in any event." It is now well settled that all such contracts of limitation, being in derogation of common law, are strictly construed, and never enforced unless shown to be reasonable. Mitchell v. Railroad Co., 124 N.C. 236, 32 S.E. 671; Hinkle v. Railway Co., 126 N.C. 932, 36 S.E. 348, and cases therein cited. This court has said in Wood v. Railway Co., 118 N.C. 1056, 24 S.E. 704, that: "Such stipulations contained in a contract are a part of the contract, but they do not contain any part of the obligation of the contract. They are conditions in the nature of estoppels, and, when enforced, operate to prevent the enforcement of the obligations of the contracts. Such restrictions, when reasonable, will be sustained. But, as they are restrictions of common-law rights and common-law obligations of common carriers, they are not favored by the law." We do not think that the stipulation under consideration is reasonable, and therefore it cannot be enforced. We deem it proper to state that we are inclined to think that, in analogy to the ruling as to telegraph and express companies, a stipulation requiring a demand to be made within 60 days after notice of loss or damage would be reasonable. Sherrill v. Telegraph Co., 109 N.C. 527, 14 S.E. 94; Lewis v. Same, 117 N.C. 436, 23 S.E. 319; Cigar Co. v. Southern Exp. Co., 120 N.C. 348, 27 S.E. 73; Watch-Case Co. v. Southern Exp. Co., 120 N.C. 351, 27 S.E. 74. That this defense in the present instance is purely technical is shown by the testimony of the witness Holland, formerly the defendant's agent at Lincolnton, who testified that he checked the flour short when delivered to Chester & Lenoir Railroad, and also by Exhibit B. It would thus appear that the defendant knew of the loss before the...