M.V. Moore & Co. v. Southern Ry. Co.

• Decision Date: 22 March 1922
• Docket Number: 541.
• Citation: 111 S.E. 166,183 N.C. 213
• Parties: M. V. MOORE & CO. v. SOUTHERN RY. CO.
• Court: North Carolina Supreme Court

111 S.E. 166

183 N.C. 213

M. V. MOORE & CO. v. SOUTHERN RY. CO.

No. 541.

Supreme Court of North Carolina

March 22, 1922

Appeal from Superior Court, Buncombe County; Harding, Judge.

Action by M. V. Moore & Co. against the Southern Railway Company. From a judgment for defendant, plaintiffs appeal. Affirmed.

Clark C.J., dissenting.

Civil action to recover damages for the loss of merchandise tried before Harding, Judge, and a jury, at the June term, 1921, of Buncombe. Judgment for defendant. Appeal by plaintiffs.

On October 5, 1917, the plaintiffs ordered from Friedman & Co. of New York, a box of clothing which was turned over to the Pennsylvania Railroad Company for transportation and delivery to the purchasers in Asheville. The Pennsylvania Railroad then issued a straight nonnegotiable bill of lading containing this provision:

"No carrier shall be liable for loss, damage, or injury not occurring on its own road or its portion of the through route, nor after said property has been delivered to the next carrier, except as such liability is or may be imposed by law, but nothing contained in this bill of lading shall be deemed to exempt the initial carrier from any such liability so imposed." Section 2.

The defendant was the terminal carrier. The agent of the defendant in Asheville collected the freight charges and delivered the box to the plaintiffs; and the box when opened was found to contain paper and packing, but no part of the original shipment. The plaintiffs filed with the defendant a claim for the invoice price of the goods, together with the charges for freight, and brought suit against the defendant after it had refused to make payment. The Pennsylvania Railroad is not a party to the action.

The issues were answered as follows:

1. Did the initial carrier, Pennsylvania Railroad Company, receive from J. Friedman & Co., to be transported to the plaintiff at Asheville, N. C., the box containing the clothing mentioned and described in the complaint? Answer: Yes.

2. If so, was said clothing lost by reason of the negligence of the Pennsylvania Railroad Company, as alleged in the complaint? Answer: Yes.

3. If said clothing was delivered to said Pennsylvania Railroad Company, was the same lost by the negligence of the Southern Railway Company? Answer: No.

4. What damages, if any, are the plaintiffs entitled to recover of the defendant? Answer: $292.14, with interest from October 5, 1917.

The plaintiffs made a motion for judgment upon the verdict on the ground that the bill of lading constituted a contract or partnership by which the receiving carrier and the connecting lines became jointly and severally liable for the loss. The court's denial of the motion is assigned for error.

Lee & Ford, of Asheville, for appellants.

Martin, Rollins & Wright, of Asheville, for appellee.

ADAMS J.

The case was appropriately submitted to the jury on the question of the defendant's negligence. Proof that the box was empty when delivered to the plaintiffs required of the defendant an election between introducing testimony in exoneration and risking an adverse verdict on the evidence of the plaintiffs. Meredith v. R. R., 137 N.C. 478, 50 S.E. 1; White v. Hines, 182 N.C. 275, 109 S.E. 31. But the verdict shows that the loss was due, not to the negligence of the defendant, but to the negligence of the initial carrier. The answer to the third issue exonerated the defendant from the charge of negligence. The question for decision, then, is this: Upon the pleadings and the proof in this cause, can the terminal carrier who collected the freight charges when the shipment was delivered be held liable in damages to the consignee for the negligence of the receiving carrier, upon bare proof of carriage on a uniform nonnegotiable bill of lading which contains the provisions hereinbefore stated? There is no contention that the defendant incurred liability by reason of the joint or concurrent negligence of separate lines independently operated.

As a general rule, the liability of a common carrier is presumed to be its common-law liability, and any party attempting to prove otherwise carries the burden of showing facts and circumstances which change or affect such liability. N. J. Steam Nav. Co. v. Bank, 6 How. 344, 12 L.Ed. 465; R. R. v. Stock Co., 136 Ill. 643, 27 N.E. 59, 29 Am. St. Rep. 348; R. R. v. Barrett, 36 Ohio St. 448; Jackson v. R. R., 23 Cal. 268; Graham v. Davis, 4 Ohio St. 362, 62 Am. Dec. 285; 10 C.J. 110. At common law a carrier was liable for loss or damage to property in its possession, not due to the act of God, the fault of the shipper, or the inherent nature or quality of the goods; but such carrier was bound to carry the shipment only over its own line and to deliver it without damage to the next succeeding carrier. The English doctrine announced in 1841 in Muschamp v. R. R., 8 Mees. & W. 421, has been repudiated by the Supreme Court of the United States and by the greater number of the American courts, and the generally accepted doctrine has been stated as follows: In the absence of any contract, or partnership agreement, or constitutional or statutory provision, a common carrier is not required to transport goods to a point beyond its line, for its obligation extends only to carriage to the end of its route and delivery to the consignee or to the next succeeding carrier; and in these circumstances the carrier, whether initial, intermediate, or terminal, is liable only for such loss or damage as results from its own negligence. In R. R. v. Myrick (decided in 1883) 107 U.S. 102, 1 S.Ct. 425, 27 L.Ed. 325, Mr. Justice Field said:

"The general doctrine, then, as to transportation by connecting lines, approved by this court, and also by a majority of the state courts, amounts to this: That each road, confining itself to its common law liability, is only bound, in the absence of a special contract, to safely carry over its own route and safely to deliver to the next connecting carrier, but that any one of the companies may agree that over the whole route its liability shall extend. In the absence of a special agreement to that effect, such liability will not attach, and the agreement will not be inferred from doubtful expressions or loose language, but only from clear and satisfactory evidence." R. R. v. Ex. Co., 117 U.S. 1, 6 S.Ct. 542, 628, 29 L.Ed. 791; R. R. v. R. R., 110 U.S. 667, 4 S.Ct. 185, 28 L.Ed. 291; R. R. v. Pratt, 22 Wall. 123, 22 L.Ed. 827; R. R. v. Riverside Mills, 219 U.S. 186, 31 S.Ct. 164, 55 L.Ed. 167, 31 L. R. A. (N. S.) 7; McConnell v. R. R., 163 N.C. 504, 79 S.E. 974; Phillips v. R. R., 78 N.C. 294; Lindley v. R. R., 88 N.C. 550; Rocky Mount Mills v. R. R., 119 N.C. 694, 25 S.E. 854, 56 Am. St. Rep. 682.

The plaintiffs insist, however, that this principle is not applicable here for the reason that it has been modified both by the Carmack Amendment to the Hepburn Law (U. S. Comp. St. §§ 8604a, 8604aa), and by the contract of the connecting carriers. It becomes material therefore to inquire, first, into the practical operation of the Carmack Amendment in its relation to intermediate and terminal carriers. This act provides:

"That any common carrier, railroad, or transportation company * * * receiving property for transportation from a point in one state * * * to a point in another state * * * 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, * * * and no contract, receipt, rule [or] regulation * * * shall exempt such common carrier, railroad, or transportation company from the liability hereby imposed. Provided, * * * that nothing in this section shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he has under the existing law. * * *

That the common carrier, railroad, or transportation company issuing such receipt or bill of lading shall be entitled to recover from the common carrier, railroad, or transportation company on whose line the loss, damage, or injury shall have been sustained the amount of such loss, damage, or injury as it may be required to pay to the owners of such property, as may be evidenced by any receipt, judgment, or transcript thereof." 219 U.S. 195, 31 S.Ct. 166, 55 L.Ed. 178, 31 L. R. A. (N. S.) 20; Act Cong. June 29, 1906, 34 Stat. 595 (U. S. Comp. St. §§ 8604a, 8604aa).

The "existing law" referred to is, of course, the federal law. Express Co. v. Croninger, 226 U.S. 491, 33 S.Ct. 148, 57 L.Ed. 314, 44 L. R. A. (N. S.) 257.

Under this act, when the receiving carrier accepts an interstate shipment it is conclusively treated as having made a through contract and will be liable for loss or injury occurring on any connecting line over which the shipment may pass as well as for loss or injury occurring on its own line. Express Co. v. Croninger, supra; R. R. v. Carl, 227 U.S. 639, 33 S.Ct. 391, 57 L.Ed. 683. This on the principle that each connecting carrier is made the agent of the initial carrier. In R. R. v. Riverside Mills, 219 U.S. 204, 31 S.Ct. 169, 55 L.Ed. 167, 31 L. R. A. (N. S.) 7, Mr. Justice Lurton said:

"Reduced to its final results, the Congress has said that a receiving carrier, in spite of any stipulation to the contrary, shall be deemed, when it receives property in one state to be transported to a point in another involving the use of a connecting carrier for some part of the way, to have adopted such other carrier as its agent, and to incur carrier liability throughout the entire route, with the right to reimbursement for a loss not

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