Leary v. Aero Mayflower Transit Co., Inc.

• Citation: 22 N.C.App. 702,207 S.E.2d 781
• Decision Date: 21 August 1974
• Docket Number: No. 7410DC497,7410DC497
• Parties: Robert M. LEARY and Helen F. M. Leary v. AERO MAYFLOWER TRANSIT COMPANY, INC.
• Court: North Carolina Court of Appeals

Page 781

207 S.E.2d 781

22 N.C.App. 702

Robert M. LEARY and Helen F. M. Leary v. AERO MAYFLOWER TRANSIT COMPANY, INC.

No. 7410DC497.

Court of Appeals of North Carolina.

Aug. 21, 1974.

John V. Hunter, III, Raleigh, for plaintiff appellants.

Teague, Johnson, Patterson, Dilthey & Clay by Robert W. Sumner, Raleigh, for defendant appellee.

MORRIS, Judge.

Plaintiffs first argue that certain evidence was erroneously excluded. The record does not show what the question was, so we cannot know whether the objection was to the form of a question, the content of a question, or the form or content of an answer or attempted answer. It is of no consequence, however, for the contention is without merit. Plaintiffs' counsel apparently had inquired of the femme plaintiff whether she had pointed out to the defendant's representative anything unusual about their property as distinguishable from household goods generally. The witness responded that she had told him two things--one, that it was a larger move than it appeared because of the way she stored things; and the second was that 'there were a lot of very valuable antique clocks and furniture and pictures, and that sort of thing, that they would have to be crated and handled with great care, and he said that his company was'--At this point defendant objected, the objection was sustained, and the court allowed the witness to answer for the record. Her answer was 'He said that his company was used to handling this sort of thing, and he described several moves that had come up from the United States, and one had moved into that area, you know, right down the street from us.' Plaintiffs contend that the answer is admissible under the general rules applying to admissions by agents and employees. We fail to see any prejudicial error in its exclusion. The answer to the assumed original question never mentions any one of the articles involved on appeal. The excluded portion certainly does not. The court obviously found an agency relationship between T. D'Arcy Limited and defendant, and that question is not before us on appeal. The excluded portion of the answer contains no admission of an agent which would be beneficial to plaintiffs. Certainly, its exclusion does not constitute reversible error.

Plaintiffs next contend that the admission into evidence of defendant's tariffs, over objection, was error because the tariffs were not pleaded as a defense and also because there was no evidence that they were lawfully in effect. In their brief, plaintiffs apparently take the position that the existence of the tariff is an affirmative defense and must be pled. They offer no authority for this position, except to state that the analysis found in 2A Moore's Federal Practice, § 8.27(3), indicates that under Rule 8(c) a defendant should plead affirmatively any avoidance of affirmance which goes beyond a mere negation of the plaintiff's prima facie case. We do not disagree with this position. In this case, however, the plaintiffs, in their complaint, said nothing to indicate to defendant that claim for full value would be made for these specific items. The complaint merely alleged that 'defendant, in consideration of a reasonable compensation to be paid by the plaintiffs, agreed to safely carry certain household furniture, appliances, and other personal property belonging to the plaintiffs from Ottawa, Ontario, Canada, to Raleigh, Wake County, North Carolina.' The complaint further alleged that plaintiffs' property was received by Mayflower on or about 13 March 1972, in Ottawa, for which delivery defendant executed and gave to plaintiffs its bill of lading, thereby acknowledging receipt of the goods in good order; that the property was in sound condition when delivered to Mayflower and, in exercise of ordinary care, could have been delivered to its destination without loss or delay; that defendant was negligent in particular respects and had exclusive possession, control and management of the property from the time of its receipt by it in Ottawa until it was delivered in a damaged condition in Raleigh at a time later than it contracted to deliver the goods. Defendant's answer was an admission that it agreed to carry the goods as alleged and a denial of all other allegations. We see nothing in the complaint which would notify defendant of any necessity to plead its tariff. Indeed, it was not until trial that defendant had any notice that plaintiffs claimed that articles of extraordinary value were included in the shipment. Plaintiffs do not argue their contention that there was no evidence that the tariffs were lawfully in effect. This candor is commendable in view of the fact that plaintiffs introduced into evidence the bill of lading which referred to the tariff and specifically provided that 'the shipment will move subject to the rules and conditions of the carrier's tariff'. The bill of lading also contained, at the top thereof, the following: 'Received subject to classifications, tariffs, rules and regulations including all terms printed or stamped hereon or on the reverse side hereof in effect on the date of issue of this bill of lading.' Immediately under Mr. Leary's signature as to value appeared this "IMPORTANT NOTICE TO SHIPPERS OF HOUSEHOLD GOODS.' 'General Information for Shippers of Household Goods' pamphlets have been given to shipper or his agent.' This was signed by an agent of the carrier. This pamphlet, introduced in evidence by both plaintiffs and defendant, was identified by both Mr. and Mrs. Leary, both of whom testified that they read it prior to the move and were familiar with its contents. The tariff was identified, without objection, as the tariff which was in effect for the year of 1970. The bill of lading, which Mr. Leary signed and with which he said he was familiar, and the pamphlet issued by the Interstate Commerce Commission entitled 'Summary of Information for Shippers of Household Goods', which both plaintiffs admitted having read, were sufficient to put them on motice that their shipment was subject to defendant's tariff on file with the Interstate Commerce Commission.

With respect to the bill of lading and tariff, 'Ordinarily, the contract is embodied in the shipping receipt or bill of lading, but this does not constitute the entire contract; rather, such receipt or bill and the operative tariffs and schedules constitute the entire contract of carriage.' 13 Am.Jur.2d, Carriers, § 226, p. 741, and cases there cited.

While it is true that an oral agreement to do a certain thing is not necessarily merged by a later bill of lading, McAbsher v. R.R., 108 N.C. 344, 12 S.E. 892 (1891), here there was no evidence of any oral agreement with respect to any specific items included in the shipment either with respect to value or handling. The only scintilla of evidence in this respect is the reference by both Mr. and Mrs. Leary to antique clocks. These are not the subject of this appeal, nor was there any oral agreement even with respect to those. Mr. Leary did testify that when he signed the bill of lading, there were certain places left blank. These were the address and other information with respect to the place and time of delivery in Raleigh. The values and all other pertinent information was in the bill of lading. In Schroader v. Express Agency, 237 N.C. 456, 459, 75 S.E.2d 393, 396 (1953), the Supreme Court, through Parker, J., (later C.J.) said:

'A bill of lading is said to be both a contract and a receipt. It is receipt for the goods shipped, and a contract to transport and deliver the same As therein stipulated.' (Emphasis supplied.)

Generally, the majority view is that a shipper who signs and receives a bill of lading without objection, after opportunity to inspect it, and permits the carrier to act on it by proceeding with the shipment, is presumed to have assented to its terms. 13 Am.Jur.2d, Carriers, § 273. Additionally, even though conditions are not on the face of the bill of lading, if the bill of lading expressly states that conditions are to be found on the reverse side thereof, as this one did, the bill of lading comes within the general rule, and the shipper is generally held to be bound by the conditions found on the reverse side. 13 Am.Jur.2d, Carriers, § 274.

In the case before us, there is no evidence which would justify applying any rule other than the general rules set out above. Plaintiffs contend, however, that even if the tariff was admissible and even if the plaintiffs are bound by the conditions set out in the bill of lading and tariff requiring listing of 'articles of extraordinary value' in order to recover for their loss, the defendant cannot rely thereon because the provisions of 49 U.S.C.A. 20(11), commonly known as the Carmack Amendment to the Interstate Commerce Act, prohibit limitation of liability, which Amendment reads as follows:

'Any common carrier, railroad, or transportation company subject to the provisions of this chapter receiving property for transportation from a point in one State or Territory or the District of Columbia to a point in another State, Territory, District of Columbia, or from any point in the United States to a point in an adjacent foreign country shall issue a receipt or bill of lading therefor, and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it or by any common carrier, railroad, or transportation company to which such property may be delivered or over whose line or lines such property may pass within the United States or within an adjacent foreign country when transported on a through bill of lading * * *; and any such common carrier, railroad, or transportation company so receiving property for transportation from a point in one State, Territory, or the District of Columbia to a point in another State or Territory, or from a point in a State or Territory to a point in the District of Columbia, or from any point in the...