Parker v. Atlantic Coast Line R. Co.

• Decision Date: 10 November 1903
• Parties: PARKER v. ATLANTIC COAST LINE R. CO.
• Court: North Carolina Supreme Court

45 S.E. 658

133 N.C. 335

PARKER v. ATLANTIC COAST LINE R. CO.

Supreme Court of North Carolina

November 10, 1903

Petition for rehearing. Dismissed.

For former decision without opinion, see 43 S.E. 1005.

In an action for damages for delay in shipment of perishable fruit a newspaper published at the destination is admissible as proving negligence of the carrier, and what was done by it to relieve a strike, under an agreement permitting the use of copies of the paper on the question of the condition of the market and market value, as "condition of the market" includes the surrounding circumstances tending to affect the value of the fruit on the market. Rehearing, Parker v. Railroad Co. (1902) 43 S.E 1005, 131 N.C. 827, denied.

F. A Daniels, G. B. Elliott, and W. C. Munroe, for petitioner.

Isaac F. Dortch and W. T. Dortch, for defendant.

DOUGLAS J.

This case is now before us on a rehearing. 43 S.E. 1005. It was affirmed by a per curiam judgment on the authority of Pipkin v. Railroad, 128 N.C. 615, 39 S.E. 966--a case against the same defendant, and involving a similar cause of action. The latter case was also decided without an opinion, as it was thought that the principles of law governing the case had been substantially settled. In its petition to rehear, the plaintiff says: "It was error to decide this case by a per curiam judgment, without an opinion in writing by the court, containing its reasons in full." We cannot admit the error so broadly assigned. It is our duty to decide all cases brought before us, but whether a written opinion shall be filed is entirely within our discretion. A failure to do so is in no sense a reflection upon counsel, nor is it any criterion as to the ability or learning with which the case may have been argued. It simply means that we do not think it necessary. It has been seriously questioned whether it would not be better to have fewer written opinions, as general principles may be weakened or confused by multitudinous explanations. If the essential principles upon which a case depends have been already settled, we can add but little if anything to what has already been said, while the discussion of questions not essential to its determination, even if argued by counsel may well be omitted in the interest of time and space. Still, it is proper at all times for counsel to ask for a written opinion when they deem it necessary for the furtherance of justice, but it is equally proper for us to decline it when we deem it unnecessary. In the present instance, especially in view of the numerous cases depending upon the one at bar, we think it entirely proper that a written opinion should be asked and given. This is especially so in view of the following statement in the petition: "The principles involved in this decision are of great importance to each and every one of these shippers, as well as to the carriers doing business in this state. It would seem, from this judgment, as it now stands, that this petitioner has been remiss in some particular. If so, a written opinion would enable it to repair its practice, if it is remiss, and provide against a repetition of the circumstances that brought about this, and the various other cases brought against it in this respect. Without such a written opinion, this petitioner is powerless to determine wherein it has been remiss, if it has been, for this court has not enunciated the matter in which the law has been neglected or violated. Your petitioner therefore urges, with all respect, but with emphasis, that an opinion is necessary in this case, not only for a determination of the case at bar, but as a guide for future transactions within this state."

In the discussion of the principles involved in this case, we will follow the order in which they appear in the petition. It says: "Your petitioner respectfully points out the following as questions that arise in the determination of this case, which have not heretofore been passed upon by this court: (2) Principles of Law not Heretofore Decided in North Carolina. (a) Whether this plaintiff, by sounding his action in tort, can thereby annul and render of no effect the terms of the contract he has made with the carrier."

We do not think that this question is before us--certainly not in the form in which it is stated. It assumes that there was a valid contract existing between the plaintiff and defendant, whereby the defendant was relieved from all damages resulting from delay, no matter from what cause such delay might arise. In our opinion, there was no such contract. It is true that the words, "Subject to delay," were written on the bill of lading, but we do not think that they modified its essential character. If they meant that the melons were accepted for shipment subject to delays arising from causes beyond the control of the carrier, they merely expressed one phase of the carrier's liability under an ordinary "Owner's risk" bill of lading. If such indorsement was intended to relieve the carrier from liability for delay arising from its own negligence, it would not be enforceable. Rocky Mt. Mills v. Railroad, 119 N.C. 693, 25 S.E. 854, 56 Am. St. Rep. 682; Mitchell v. Railroad, 124 N.C. 236, 32 S.E. 671, 44 L. R. A. 515; Gardner v. Railroad Co., 127 N.C. 293, 37 S.E. 328; Hart v. Railroad, 112 U.S. 331, 5 S.Ct. 151, 28 L.Ed. 717; Ins. Co. v. Erie, etc., Trans. Co., 117 U.S. 322, 6 S.Ct. 750, 29 L.Ed. 873; Liverpool Steam Co. v. Ins. Co., 129 U.S. 397, 9 S.Ct. 469, 32 L.Ed. 788; Ins. Co. v. Compress Co., 133 U.S. 387, 415, 10 S.Ct. 365, 33 L.Ed. 730; Constable v. Steamship Co., 154 U.S. 51, 62, 14 S.Ct. 1062, 38 L.Ed. 903. In Gardner v. Railroad, 127 N.C. 293, 37 S.E. 328, the court says on page 296, 127 N. C., page 329, 37 S. E.: "It is a well-settled rule of law, practically of universal acceptance, that, for reasons of public policy, a common carrier is not permitted, even by express stipulation, to exempt itself from loss occasioned by its own negligence." Hale on Bail. & Car. § 90, thus lays down the rule: "By express agreement, common carriers may limit their liability to that of ordinary bailees for hire; but they cannot stipulate against liability for negligence either of themselves, or of their agents or servants." Again the same author says in section 82: "Even where the loss is caused by a peril against which carriers are not insurers, they are nevertheless liable, if they fail to use reasonable care and diligence to avoid all perils, including the excepted perils."

The first issue was, "Did the defendant exercise due diligence, under all the circumstances, to avoid delay in carrying and delivering plaintiff's melons?" To this the jury answered, "No." The burden of this issue was upon the defendant. Mitchell v. Railroad, 124 N.C. 236, 32 S.E. 671, 44 L. R. A. 515; Hinkle v Railroad, 126 N.C. 932, 36 S.E. 348, 78 Am. St. Rep. 685, and cases there cited. The rule is clearly laid down in 2 Greenleaf on Evidence, § 219, as follows: "If the acceptance was special, the burden of proof is still on the carrier to show not only that the cause of the loss was within the terms of the exception, but also that there was on his part no negligence or want of due care." The rule is thus stated in 5 A. & E. (2d Ed.) 254: "It seems, however, that on proof of a delay in delivery a prima facie case is made out against the carrier, and the burden of proof rests upon it to show that the delay was from a cause for which it was not responsible. It rests on the carrier for the additional reason that such facts are peculiarly within the knowledge of the carrier, and not easily ascertained by a shipper." In Hinkle v. Railroad, 126 N.C. 932, 36 S.E. 348, 78 Am. St. Rep. 685, this court says on page 938, 126 N. C., page 350, 36 S. E., 78 Am. St. Rep. 685: ""This rule, which is the natural result of the prima facie liability of the common carrier, is further strengthened by the universal acceptance of the principle that where a particular fact, necessary to be proved, rests peculiarly within the knowledge of a party, upon him rests the burden of proof. 5 Am. & Eng. Enc. (2d Ed.) p. 41; Best on Ev. § 274; 1 Greenleaf, § 79; Starkie on Ev. § 589; Rice on Ev. § 77; Railroad v. U. S., 139 U.S. 560, 567 [11 S.Ct. 638, 35 L.Ed. 266]; State v. McDuffie, 107 N.C. 885, 886 ; Govan v. Cushing, 111 N.C. 458, 461 ; Mitchell v. Railroad, supra." In fact, the difficulty, or rather the practical impossibility, of the shipper proving how his goods were lost while in the custody of the carrier, led to the adoption of the common-law rule holding the carrier as an insurer. The reason of the rule is thus stated by Holt, C.J., in Coggs v. Bernard, 2 Lord Raymond, 909, 918: "The law charges this person [the common carrier] thus instructed to carry goods against all acts but acts of God and the enemies of the King. For, though the force be ever so great, as if an irresistible multitude of people should rob him, nevertheless he is chargeable. And this is a political establishment, contrived by the policy of the law for the safety of all persons, the necessity of whose affairs oblige them to trust these sorts of persons, that they may be safe in their ways of dealings; for else these carriers might have an opportunity of undoing all persons that had any dealings with them, or combining with thieves, etc., and yet doing it in such a clandestine manner as would not be possible to be discovered. And this is the reason the law is founded upon that point." The reason is thus stated in Riley v. Horne, 5 Bing. 217: "When goods are delivered to a carrier, they are usually no longer under the eye of the owner. He seldom follows or sends any servant with them to the place of their destination. If they should be lost or injured by the grossest...