Pritchard v. Norfolk Southern Ry. Co.

• Citation: 82 S.E. 875,166 N.C. 532
• Decision Date: 23 September 1914
• Docket Number: 23.
• Parties: PRITCHARD v. NORFOLK SOUTHERN RY. CO.
• Court: North Carolina Supreme Court

82 S.E. 875

166 N.C. 532

PRITCHARD v. NORFOLK SOUTHERN RY. CO.

No. 23.

Supreme Court of North Carolina

September 23, 1914

Appeal from Superior Court, Pasquotank County; Ferguson, Judge.

Action by G. D. B. Pritchard, as receiver of the Le Roy Steamboat Company, against the Norfolk Southern Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

The trial court can permit amendment so as to join an additional cause of action germane to the cause of action originally pleaded.

The issues submitted were as follows:

(1) Is the plaintiff's claim for damages paid to M. Hoffman & Bro. barred by the statute of limitations? Answer: No.

(2) What amount is due the plaintiff paid M. Hoffman & Bro damages to the 337 bags? Answer: $728.41.

(3) Is the plaintiff indebted to the defendant for interest on the deferred payments on the purchase money of the boats? Answer No.

(4) What amount is due the plaintiff by defendant for money had and received? Answer: $2,247.70.

Upon the judgment rendered, the defendant appealed.

J Kenyon Wilson, of Elizabeth City, for appellant.

Aydlett & Simpson, of Elizabeth City, for appellee.

BROWN J.

This action is brought to recover a balance due from the defendant under a traffic contract, together with certain damages, for injury to peanuts, which the plaintiff alleges it has been compelled to pay, which injury was caused by the negligence of the defendant.

First. The plaintiff claims that in June, 1910, it received from M. Hoffman & Bro. a lot of peanuts, which, under its traffic contract with the defendant, it delivered to the defendant in good condition. The plaintiff further alleges that these peanuts were damaged by the negligence of the defendant while in transit to Suffolk, Va. The defendant denies the negligence, and, also, pleads the statute of limitations. The question of negligence was properly submitted to the jury, and there is abundant evidence in the record tending to support the allegation.

The president of the Le Roy Steamboat Company testifies:

"The peanuts were refused at Suffolk. I went to the agent of the Suffolk Peanut Company, and he advised me that the peanuts had been refused. Most of them were smoking from the heat. The doors of the railroad cars were gone, and the rain beat in. The rain was universal for two or three weeks. The agent of the railroad said that it rained. There was nothing to keep the rain out except two or three slats. The doors were shut. They were about six feet high and about ten feet wide. There was nothing in the space to keep the rain from beating in. The cars were in a bad condition, and one had a leaky roof. I called Mr. Warren's attention to it, and I told him that they had no business to put peanuts in that car. The cars were wet from the inside. I did not see any cracks in the cars, but the roof was wet."

It is contended further that the claim is barred by the statute of limitations. We do not think upon the admitted facts that the plea can be sustained. It is true the action was commenced on the 18th of May, 1912, and the original complaint was filed on the 24th of May, 1912. The action appears originally to have been brought for an accounting and settlement of the freight money due the plaintiff under the traffic contract. We find no mention in the complaint of the damages to the peanuts, which were delivered to the defendant company in June, 1910; nor do we find, as attempted to be pointed out by the plaintiff's counsel, any reference to this demand in the bill of particulars. But an amendment to the complaint was filed on the 8th of January, 1914, and the plaintiff claims that cause of action did not arise until July, 1911, the time when the plaintiff paid the money for the damages to the shipper of the peanuts. In this amended complaint the allegations concerning the injury to the peanuts and the payment therefor by the plaintiff are fully set out.

We are of opinion that the filing of the amended complaint was a matter in the discretion of the court, and that, while it is practically an additional cause of action, it is so germane to the original cause of action that both may be considered in one action.

If the cause of action arose in June, 1910, when the peanuts were injured, then we think the claim would be barred by the statute, but, in our opinion, the cause of action did not arise until the money was paid by the plaintiff to the owner of the peanuts, and that was in July, 1911.

His honor, therefore, correctly charged the jury:

"If you shall find that from the time the payment was made until the complaint was filed this January there was less than three years, the statute does not bar the claim. If the payments were made in July, 1911, then the statute does not bar the claim, and you could answer the issue 'No.' "

As between the common carrier and the shipper, the cause of action would arise when the damage ensued and the injury was inflicted; but now, as between common carriers themselves, a cause of action would not arise in behalf of one carrier against the other until the common carrier suing for the same had paid the damages, as, until that had been done, it would have sustained no injury.

The Le Roy Steamboat Company and the defendant were practically copartners in the transportation business, and each is liable for any damage resulting from delay or otherwise on the lines of each other, but the one could not recover from the other damages which it had never been called upon or required to pay. Mills v. Ry. Co., 119 N.C. 694, 25 S.E. 854, 56 Am. St. Rep. 682.

There is quite a distinction between the case at bar and that of the Penna. Co. v. C., M. & St. Paul Ry. Co., 144 Ill. 197, 33 N.E. 415. In that case one railroad company sued another for goods which it had delivered to it and which the defendant company had allowed to go astray, and for which a judgment had been rendered in behalf of the owner against the plaintiff company. There is nothing in the record which shows that there was any traffic contract existing between the two companies for joint transportation. At the time the...