Produce Trading Co. v. Norfolk Southern R. Co.

• Decision Date: 01 October 1919
• Docket Number: 14.
• Citation: 100 S.E. 316,178 N.C. 175
• Parties: PRODUCE TRADING CO. v. NORFOLK SOUTHERN R. CO.
• Court: North Carolina Supreme Court

100 S.E. 316

178 N.C. 175

PRODUCE TRADING CO. v. NORFOLK SOUTHERN R. CO.

No. 14.

Supreme Court of North Carolina

October 1, 1919

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

Action by the Produce Trading Company against the Norfolk Southern Railroad Company. From a judgment for plaintiff, defendant appeals. No error.

An initial carrier, liable under the Carmack Amendment to the federal Interstate Commerce Act (49 U.S.C.A. 20(11, 12) ) for damage to the goods in the hands of any succeeding carrier has a remedy over against the carrier in default, if it was not itself negligent.

First Shipment--Second Issue.--Plaintiff sued for damages sustained in the shipment of potatoes, and he especially relied on negligence in the transportation of four lots, some of which were either injured or lost. The inquiry in regard to those damages is covered by the second, fifth, sixth, and tenth issues. The first shipment of 200 barrels was to Elizabeth City, N. C., at which place, on the wharf of defendant, the potatoes were deposited by the North River Steamboat Company it having been brought by that line from one of its landings on the river at Jarvisburg, N. C., June 14, 1917, under a bill of lading in which they were consigned by the plaintiff to itself--destination not mentioned, but left blank. These potatoes were loaded in defendant's cars, and they were carried to Berkley, Va., and by telegraph ordered to be reconsigned there to John A. Eck, at Chicago, Ill. When they were loaded in cars at Elizabeth City, N. C., a through way bill, or shipping instructions, reading from Jarvisburg, N C., to Berkley, Va., was handed by the agent of the steamboat line to the agent of defendant at Elizabeth City. Ten barrels of these potatoes were lost in transit, and the market price of the others had fallen 50 cents per barrel, by reason of the delay in shipment, causing the consignor to lose that much from the contract price, as the consignee exacted that much in reduction of the amount due by them.

Second Shipment--Fifth Issue.--This shipment contained 200 barrels of potatoes, consigned by plaintiff to Lally Bros., at Chicago, Ill. Four barrels were lost in transit, and the rest were delayed in shipment and damaged by delay. The car was in bad condition, and was marked, "Car in bad order, shop when empty." These potatoes were brought by the North River Line to Elizabeth City, N. C., from Morris' Wharf N. C., a landing on the river, on June 18, 1917. The goods moved from Elizabeth City by defendant's line and connecting carriers to Chicago, Ill. Plaintiff claims as damages $330.

Third Shipment--Sixth Issue.--The bill of lading in this case was issued by the defendant at Pasquotank, N. C., on June 19, 1917, in the name of the Produce Trading Company, as consignor and consignee, destination Berkley, Va., for 175 barrels of potatoes, and the bill was indorsed "S. L. & C.," meaning "shipper's load and count." The car left Pasquotank on June 19, arrived at Berkley, Va., at 4:10 p. m. the same day, and the next day, June 20, 1917, plaintiff by telegraph reconsigned it at that place to Zivi & Co., Chicago, Ill., route Star Union. Plaintiff alleged damage to 7 barrels of the potatoes and delay in transporting the remainder of them, whereby, as to the latter part of the shipment, plaintiff lost $1.50 per barrel by the decline in the price. The claim is for $28, on account of the lost barrels of potatoes, and $256.50 for the loss in price of the others.

Fourth Shipment--Sixth Issue.--This was 207 barrels of potatoes received by defendant at Bishop's Cross, and consigned to Watson & Sons, Chicago, Ill., on June 17, 1917. When the car of potatoes arrived at its destination, it was found to be short 9 barrels, for which plaintiff claimed damages in the sum of $90.

Upon the verdict, the court gave judgment for the total amounts assessed by the jury under the foregoing issues, and defendant appealed.

Thompson & Wilson, of Elizabeth City, and W. B. Rodman, of Norfolk, Va., for appellant.

Aydlett, Simpson & Sawyer, of Elizabeth City, for appellee.

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

We have only given an outline of the several causes of action upon which the four sets of issues above set out were framed, preferring to mention the other pertinent facts in this opinion, when dealing with each shipment separately.

The first set of issues related to the shipment of potatoes by the plaintiff via the North River Line to Elizabeth City, N. C., from a landing on the river. The evidence tends to show that various shipments were made to that place, and there assembled for transportation, after being assorted, to distant points in other states. It did not appear clearly at the trial whether the defendant, or the North River Line, was the first carrier in the line of continuous transportation to the final destination, and the court, therefore, very properly submitted the question to the jury to say how this was. There was testimony which would authorize a decision either way, and the evidence was not conclusive of the question for either side. The proper course was therefore taken, for the decision of the question depended upon how the jury should find the facts to be. There was no destination stated in the original bill of lading, and defendant contends that the shipment was intended for Berkley, Va., from which place it was reconsigned to John A. Eck Company, at Chicago, Ill. It would be impossible to hold, as a matter of law, that defendant was not the first carrier, as to do so we would have to ignore all the evidence as to the position held by the North River Line. In the first place, it was for the jury to say whether Berkley was originally intended as the destination, when its destination was left blank in the bill of lading. We cannot assume in law that it was so intended to be. The jury had the right to consider the bills of lading in connection with the other relevant testimony, and they would have to do so, in order to give the true effect to the transaction. Having decided that defendant was the initial carrier, it made no difference, under the Carmack Amendment (Act June 29, 1906, c. 3591, § 7, pars. 11, 12, 34 Stat. 595) to the Interstate Commerce Act (Act Feb. 4, 1887, c. 104, § 20, 24 Stat. 386 [U. S. Comp. St. §§ 8604a, 8604aa]), as to this shipment, whether defendant was chargeable with negligence, either in respect to the loss of the potatoes or any part thereof, or of the damage to them. This, we take it, is conceded by the defendant; but, if not, it is correct as a principle of the law applicable to this case.

But the defendant argues that the steamboat company was engaged in interstate commerce, and therefore it must have been the first carrier, and not the defendant. But the conclusion does not follow from the premise. Counsel rely on the following authorities to sustain their position: Texas, etc., Railroad Co. v. Sabine Tram Co., 227 U.S. 111, 33 S.Ct. 229, 57 L.Ed. 442; S. P. Terminal Co. v. Interstate Commerce Commission, 219 U.S. 498, 31 S.Ct. 279, 55 L.Ed. 310; Railroad Commission v. Worthington, 225 U.S. 101, 32 S.Ct. 653, 56 L.Ed. 1004. But the question there was not as to who was the initial carrier within the meaning of the Carmack Amendment, but whether the defendant carriers were engaged in interstate commerce, and therefore subject to the rates prescribed by the Interstate Commerce Commission, and not to those of the state Railroad Commission. We will refer further to only one of those cases, which is typical of all of them; the others being practically like it.

In Railroad Co. v. Sabine Tram Co., supra, we understand the case and decision to be this: A shipment of lumber, destined by the purchaser for export, was made by the seller under a local bill of lading from an interior point in Texas to a Texas Gulf port, at which the lumber was unloaded without delay by the purchaser's order into slips or docks, in reach of ship's tackle, and was then loaded into chartered ships, by which it was carried to foreign ports. Such shipment, not being an isolated one, but typical of many others, constitutes foreign commerce, as the court held, and as such is governed by the tariffs on file with the Interstate Commerce Commission, to the exclusion of the rates established by the state Railroad Commission, although the seller had no connection with the lumber after it reached the railway terminus, and had no concern with its destination after it came into the hands of the purchaser, and no knowledge thereof, and although the lumber had no definite foreign destination at the time of the initial shipment. But this, according to our conception, is far from holding that the first railroad which handled the lumber at Rutliff, in Texas, and destined for Sabine, was an "initial carrier." The court held that the connecting carriers, all in Texas, from the first to the last, were subject to the federal tariffs as to switching charges, as they were engaged in interstate commerce.

The second shipment was from plaintiff, at Morris' Wharf, N C., on the North River Line, to Lally Bros., Chicago, Ill and the court held that the steamboat company was the initial carrier, and called upon the jury to inquire and find whether the defendant, who was an intermediate carrier, was actually negligent in respect to the loss of four barrels of potatoes and damage to the others, and liable therefor, as a question of fact. We do not see why the case is not fully covered by Meredith v. Railroad Co., 137 N.C. 478, 50 S.E. 1, assuming the contract of carriage to have been that defendant, as an intermediate carrier, agreed to transport the goods over his own line and to deliver them to the next carrier on the route in the same condition that...