McConnell v. New York Cent. & H.R.R. Co.

• Decision Date: 12 November 1913
• Citation: 79 S.E. 974,163 N.C. 504
• Parties: McCONNELL v. NEW YORK CENT. & H. R. R. CO. et al.
• Court: North Carolina Supreme Court

79 S.E. 974

163 N.C. 504

McCONNELL v. NEW YORK CENT. & H. R. R. CO. et al.

Supreme Court of North Carolina

November 12, 1913

Appeal from Superior Court, Moore County; Adams, Judge.

Action by S. P. McConnell against the New York Central & Hudson River Railroad Company and others. Judgment for plaintiff and defendants appeal. Affirmed.

Where an initial carrier, under an oral contract, agreed to transport goods to destination over the lines of connecting carriers to be selected by it, it was liable as an insurer for damages to the goods resulting on any part of the route.

At common law, carriers are not bound to carry except on their own line, but by special contract to transport the goods to destination over the lines of connecting carriers they may subject themselves to liability over the whole course of transit.

This action was brought to recover damages for injury to a car load of household goods, shipped by plaintiff from Oscawana N. Y., to Carthage, N.C. The goods were shipped under an oral contract for their transportation from the beginning to the end of their journey and their delivery at the terminal point to the consignee. The goods were damaged during the transit as the jury find, by the negligence of the defendant in transferring them from its car, in which they had been originally and carefully packed, to a car of a connecting line, and also by the careless manner of stowing or arranging them in that car. Defendant alleges that they were shipped under a written contract of carriage, with a specified valuation clause inserted in consideration of a reduced charge or toll for the carriage, it being $10 per 100 pounds and other stipulations restricting its liabilty for loss from negligence to its own line or its portion of the through route, and also in other respects, but they need not be dwelt upon, as the decision of the case will turn upon other matters. After the goods had arrived at their destination plaintiff signed a bill of lading and placed it among the claim papers, as he said, by inadvertence, not meaning thereby to change the contract of shipment, which contained no clause of limitation as to liability or value in case of loss, and that this paper was not signed by him until after the goods arrived in Carthage; that he did not know how this bill got into his files, and he signed it not knowing what it was and by accident or mistake in making up his claim papers. The following is the verdict of the jury: "(1) Did the plaintiff deliver to the defendant for transportation from Oscawana, N. Y., to Carthage, N. C., a car load of furniture and household goods, as alleged in the complaint? Answer: Yes (by consent). (2) If so, were said furniture and household goods damaged by the negligence of the defendant, as alleged in the complaint? Answer: Yes. (3) Did plaintiff and defendant make a written contract for the transportation of said property, as alleged in the answer? Answer: No. (4) What damages, if any, is the plaintiff entitled to recover? Answer: $2,671, with interest from September, 1911." Judgment was entered upon the verdict, and defendant appealed.

W. H. Neal, of Laurinburg, for appellants.

U. L. Spence, of Carthage, for appellee.

WALKER, J. (after stating the facts as above).

The decision of this appeal turns upon the question as to what was the contract of the parties.

If the defendant undertook, for a consideration, to carry the goods from Oscawana, N. Y., to Carthage, N. C., and safely deliver them there, without restriction and with no release of its common-law liability, the defendant is undoubtedly answerable to the plaintiff for actual damage to the goods. His liability is that of an insurer, with certain well-defined exceptions. Hutchinson on Carriers (3d. Ed.) § 265 (section 170a), says: "The liability of the common carrier by law is, as has been seen, an unusual and extraordinary one, based upon considerations of public policy which have survived the wonderful change in the circumstances under which they first arose. By that law the common carrier is regarded as a practical insurer of the goods against all losses of whatever kind with the exception of (1) those arising from what is known as the act of God, and (2) those caused by the public enemy; to which in modern times have been added (3) those arising from the act of the public authority, (4) those arising from the act of the shipper, and (5) those arising from the inherent nature of the goods." Currie v Railroad, 156 N.C. 432, 72 S.E. 493. But there was evidence of negligence on the part of the defendant, which was properly submitted to the jury, and they found that the goods had been damaged by its negligence, so that the question of its common-law liability is not important. The serious and vital question arose upon the issue as to damages; plaintiff contending for full damages, and the defendant for an assessment according to the terms of the bill of lading. The court instructed the jury to find whether the goods were shipped under the unlimited oral contract or under the contract as evidenced by the bill of lading, and in a charge which was full and explicit upon this point, and exceedingly clear and forceful, and, we may add, very fair to the defendant and as favorable as it was entitled to ask or could expect, the court explained the issue thus squarely made by the parties, and the jury have found that the contract was as stated by the plaintiff, oral and unrestricted, and was not the one contained in the bill of lading. It was conceded by learned counsel for the defendant (who presented its side of the case with his usual ability and precision, confining himself to the vital issue of the case) that no particular form or solemnity of execution is required for a contract of the carrier to transport goods. It may be by parol, or it may be in writing. Railway Co. v. Patrick, 144 F. 632, 75 C. C. A. 434; Railway Co. v. Jurey, 111 U.S. 584, 4 S.Ct. 566, 28 L.Ed. 527; Hutchinson on Carriers (3d Ed. § 411 (242); Berry v. Railroad, 122 N.C. 1003, 30 S.E. 14. In Railway v. Patrick, supra, the court says: "It (the contract of shipment) may be orally made, and when so made, in the absence of fraud or...