McGowan v. Wilmington & Weldon R.R. Co.

• Decision Date: 31 October 1886
• Citation: 95 N.C. 417
• Court: North Carolina Supreme Court
• Parties: A. D. MCGOWAN v. THE WILMINGTON & WELDON RAILROAD CO.

95 N.C. 417

A. D. MCGOWAN

v.THE WILMINGTON & WELDON RAILROAD CO.

Supreme Court of North Carolina.

October Term, 1886.

OPINION TEXT STARTS HERE

CIVIL ACTION, tried before Connor, Judge, and a jury, at April Term, 1886, of WAYNE Superior Court.

The following is a copy of so much of the case stated on appeal as is necessary to a proper understanding of the opinion of the Court:

“The plaintiff declared for the penalty of $25 per day, for failing to ship twenty-seven bags of rice, as freight, from Mount Olive to Goldsboro, from the 21st day of November, 1884, to the 21st day of March, 1885.

A. D. McGowan, the plaintiff, was introduced as a witness for himself, and testified that he got the bill of lading for said rice from Robert Merritt in the month of December, 1884. John H. Toler was agent of defendant at Mount Olive. Witness saw the rice on the 21st day of March, 1885, at defendant's warehouse at Mount Olive. It was marked ‘G.’ He took three sacks of it home, and shipped the balance to Henry Lee & Co., Goldsboro that day, taking a new bill of lading therefor.

On cross-examination, the witness testified that he went to Mount Olive once or twice between the 21st day of November, 1884, and the 21st day of March, 1885.

Robert Merritt was introduced by plaintiff, and testified that he carried the twenty-seven bags of rice in the Fall of 1884, to Mount Olive, and put them in the warehouse of the defendant, and took from the agent the bill of lading referred to in the testimony of the preceding witness, and that he delivered said bill to the plaintiff; that he told the agent to ship to Henry Lee & Co., Goldsboro, and the agent said he would ship it in two or three days. The said bill of lading was put in evidence. The plaintiff rested his case.

The defendant introduced J. H. Toler, who testified that he was agent of defendant at Mount Olive in November, 1884, and that the bill of lading was signed by him; that the rice delivered by Robert Merritt, the next preceding witness, was shipped according to said bill of lading; that there was a lot of rice in the warehouse which was not shipped, and which was delivered by one Phillips and one Garner for the plaintiff, and that orders were to be given for shipping the same when the whole lot should be delivered, and that witness never received any order to ship same; that plaintiff, by his agents, several times deposited rice for shipment; that he had no instructions not to ship the rice delivered by Robert Merritt, and the same was shipped; that he, Toler, had no directions from the plaintiff about shipping rice generally.

The defendant proposed to ask the witness the following question, viz: ‘Did persons who delivered rice for the plaintiff, give any instructions at the time of delivery in regard to the time of shipment?’ Objected to by plaintiff. Objection sustained. Defendant excepted.

On cross-examination, the witness testified that he was not now agent for the company, and that it was his custom to enter freight on the books when shipped, and not before.

The plaintiff then proposed to ask the witness: ‘Have you examined the defendant's books, and do they not show that this lot of rice was not entered?’ Objected to by defendant on the ground that the books were the best evidence. Objection overruled. Defendant excepts. The witness answered, ‘I do not think I have examined the defendant's books. I do not remember whether this lot of rice was on the books. I think the books show shipments between November 21st, 1884, and March 21st, 1885.’

After the evidence was closed, and before the charge was delivered to the jury, His Honor asked the defendant's counsel if he insisted that any instructions were given by the plaintiff, or his agents, not to ship the rice about which the controversy arose; to which he replied, he did not. That the only question was, whether or not the rice had been shipped; and that His Honor might answer all the issues except the sixth, in favor of the plaintiff.

The defendant's attorney insisted that the plaintiff could not recover, because of the following words in the bill of lading, viz: ‘No liability will be assumed for wrong carriage or wrong delivery of goods that are marked with initials, numbered, or imperfectly marked.’

His Honor reserved the question, and charged the jury as follows, viz: “If you find the first issue in the affirmative, the contract made by the defendant with the plaintiff, as set out in the bill of lading, was to ship the twenty-seven bags of rice in a reasonable time, and the law has fixed such time to be five days after its receipt, unless it was otherwise agreed. You will then proceed to enquire whether the rice was shipped within the time named, if not, was it by reason of any agreement made at the time of delivery? This will depend upon your finding upon the issue. If the rice was shipped, as alleged by the defendant, and testified to by Toler, you will answer the last issue in the negative. If, however, you find upon the evidence, that it was not shipped until March 21st, 1885, you will answer the issue in the affirmative. The defendant sets up no excuse for a failure to ship, if there was such failure. The burden of proof is upon the plaintiff upon the issues. You will find the facts as you may find the preponderance of the evidence. The plaintiff is confined to the rice delivered by Merritt, and you cannot consider the evidence in regard to the Phillips and Garner rice, except as throwing light upon the question as to whether the Merritt rice was, or was not, shipped.”

At the conclusion of the charge, and before the case was given to the jury, his Honor asked counsel of both parties, if any other instructinn was desired, to which was replied, there was none.

The jury returned a verdict for the plaintiff. His Honor decided the question reserved against the defendant.

Motion by defendant for new trial. Motion refused. Judgment for plaintiff.

The issues submitted to the jury, and the responses to them were as follows:

“1. Did the plaintiff on the 21st day of November, 1884, deliver to the defendant at its warehouse in Mount Olive, 27 bags of rice for shipment to Henry Lee & Co., at Goldsboro?

Yes.

2. Was the said rice the property of the plaintiff?

Yes.

3. Was said rice received by defendant for shipment?

Yes.

4. Did plaintiff agree or consent that said rice should remain unshipped?

No.

5. Was said rice received by defendant without payment of freight, and without demand therefor?

Yes.

6. Did defendant unlawfully allow said rice to remain unshipped at its warehouse in Mount Olive, from the 21st day of November, 1884, until the 21st day of March, 1885?

Yes.”

The following are the exceptions of the defendant:

“The defendant excepts to the rulings and judgment of his Honor in this action, as follows:

1. To the exclusion, on objection by plaintiff, of the following question asked by defendant of the witness, J. H. Toler, viz: ‘Did persons who delivered rice for the plaintiff, give any instructions at the time of delivery, in regard to the time of shipment?’

2. In not sustaining the objection of defendant to the following question, asked by plaintiff of the witness, J. H. Toler, viz: ‘Have you examined the defendant's books, and do they not show that this lot of rice has not been entered?’

3. His Honor erred in his charge, that “The contract made by defendant with the plaintiff, as set out in the bill of lading, was to ship in a reasonable time, and the law has fixed such time to be five days after its receipt, unless it was otherwise agreed. You will proceed to inquire whether the rice was shipped within the time named; if not, was it by reason of any agreement made at the time of delivery. This will depend upon your finding upon the issue.'??

4. His Honor erred in stating to the jury, that ‘Defendant sets up no excuse for a failure to ship, if there was such failure.’

5. His Honor erred in stating to the jury, that “They could not consider the evidence in regard to the Phillips and Garner rice, except as throwing light upon the question as to whether the Merrit rice, was or was not shipped.'??

6. His Honer erred in deciding the question reserved against the defendant.

7. In giving judgment for plaintiff.”

Mr. W. R. Allen, for the plaintiff .

Mr. Ramsay, filed a brief for the defendant .

MERRIMON, J. (after stating the facts).

The first exception cannot be sustained. What the witness would have said in reply to the question specified does not appear, as it should do, but inferring that he would have answered in the affirmative, such evidence was irrelevant and immaterial. The plaintiff sued to recover penalties which he alleges the defendant incurred by its failure to ship twenty-seven bags of rice marked ??, as it was bound to do within five days next after the rice was delivered to it for shipment. The evidence of the plaintiff, including the bill of lading, went to prove that the particular bags of rice in question, were delivered by his agent, the witness Robert Merritt, to the defendant, for shipment, on the 21st day of November, 1884. The only witness introduced by the defendant, J. H. Toler, testified that he was agent of the...