Merchant v. Lassiter

• Decision Date: 24 May 1944
• Docket Number: 673.
• Citation: Merchant v. Lassiter, 224 N.C. 343, 30 S.E.2d 217 (N.C. 1944)
• Parties: MERCHANT v. LASSITER et al.
• Court: North Carolina Supreme Court

30 S.E.2d 217

224 N.C. 343

MERCHANT v. LASSITER et al.

No. 673.

Supreme Court of North Carolina

May 24, 1944

Civil action to recover damages for the nondelivery of merchandise received and accepted by defendants for shipment.

On June 1, 1943, plaintiff delivered to defendants all the furniture wearing apparel, food supplies, and other personal effects owned by him and the members of his family, for shipment by truck to Columbus County. That part of such property for which suit was instituted has never been delivered. It is alleged that the undelivered part was destroyed by fire, but there is no evidence tending to show the cause of nondelivery except that plaintiff in reference to certain articles testified 'They were burned up along with the insurance papers and everything else.'

Plaintiff furnished defendant with a list of the undelivered property. This list was offered in evidence. A part of the property is under the heading, 'Barbara Ann Merchant,' 'Bernita Merchant,' and 'Beverly,' infant children of plaintiff. Some of it belonged to Mrs. Merchant.

As to the property listed under the names of the children plaintiff testified it was made up of articles of wearing apparel and personal effects purchased and paid for by him for the use of his children.

The plaintiff offered evidence tending to show the delivery to defendant, the nondelivery at the designated destination, and the value, and rested. Defendant offered no evidence in rebuttal.

There was a verdict and judgment for plaintiff, and defendants appealed.

Gold, McAnally & Gold, of High Point, for appellants.

C. N. Cox and Walser & Wright, of Highpoint, for appellee.

BARNHILL Justice.

A number of the exceptive assignments of error are not brought forward and discussed in the brief. They are deemed to be abandoned. Rule 28, 221 N.C. 562. (See cases cited).

The defendants insists that they are not common carriers and that the court's charge thereon was erroneous. As to this the plaintiff alleges: '(3) That the defendants are common carriers and engaged in the hauling and transferring merchandise and other article from place to place, both in the City of High Point, North Carolina, and to other parts of the State, and are licensed and permitted by the State of North Carolina to engage in said business.' The defendants answer: '(3) The allegations in paragraph 3 are admitted except it is denied that the defendants are common carriers.'

Thus the defendants admit that they are engaged in hauling and transferring merchandise from place to place in North Carolina under license from the State. This makes them a common carrier. Their denial that they are such carrier is without substance.

Plaintiff, in detailing his conversation with one of the defendants which culminated in the contract to transport, said: 'He told me at that time I had nothing to worry about, that he carried insurance.'

He insists that this was one of the representations made to him by defendants to induce him to give the business to them rather than to a competitor, and that it was competent for that purpose. In any event, the error, if any, was rendered harmless by the later admission of the same testimony. Plaintiff testified without objection: 'He said 'We have insurance, everything will be fully covered.' I took that to mean fire, breakage, or anything. Yes, insurance on whatever I got him to haul.' State v. Gordon, N.C., 30 S.E.2d 43, and cases cited.

The court charged the jury:

'Now, Gentlemen of the Jury, when a prima facie case is made out by the plaintiff, the Court charges you that if you find by the greater weight of the evidence that the plaintiff delivered the goods in question to the defendants for transportation from High Point to Columbus County and that the goods were accepted by the defendants for transportation for a valuable consideration and then the goods were not delivered in Columbus County, according to the contract, the Court charges you that makes out a prima facie case of negligence on the part of the defendants. And then, if you find those facts to be true from the evidence and by the greater weight thereof, the Court charges you that you will answer the first issue Yes; otherwise, No.'

While proof of facts whch constitute prima facie evidence of negligence permits but does not compel a verdict for the plaintiff, and the last sentence in the quoted excerpt amounts to a peremptory instruction upon the evidence, exception thereto cannot be sustained.

A carrier is an insurer against the loss of goods received for shipment, Morris v. American Ry. Express Co., 183 N.C. 144, 110 S.E. 855, and it is liable for the loss of 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. Moore & Co. v. Southern R. Co., 183 N.C. 213, 111 S.E. 166.

It is bound to safely carry and...