Productive Tool Corp. v. Pilot Freight Carriers, Inc.

• Decision Date: 18 May 1977
• Docket Number: No. 7627DC816,7627DC816
• Citation: 234 S.E.2d 758,33 N.C.App. 241
• Court: North Carolina Court of Appeals
• Parties: PRODUCTIVE TOOL CORPORATION, v. PILOT FREIGHT CARRIERS, INC.

Page 758

234 S.E.2d 758

33 N.C.App. 241

PRODUCTIVE TOOL CORPORATION, v. PILOT FREIGHT CARRIERS, INC.

No. 7627DC816.

Court of Appeals of North Carolina.

May 18, 1977.

William G. Holland, Gastonia, for plaintiff-appellee.

Hollowell, Stott & Hollowell by James C. Windham, Jr., Gastonia, for defendant-appellant.

PARKER, Judge.

The record on appeal contains but one exception, being the exception to the signing and entering of the judgment, and it contains no assignment of error. Rule 10(a) of the North Carolina Rules of Appellate Procedure is as follows:

"RULE 10

EXCEPTIONS AND ASSIGNMENTS OF ERROR IN RECORD ON APPEAL

(a) FUNCTION IN LIMITING SCOPE OF REVIEW. Except as otherwise provided in this Rule 10, the scope of review on appeal is confined to a consideration of those exceptions set out and made the basis of assignments of error in the record on appeal in accordance with this Rule 10. No exception not so set out may be made the basis of an assignment of error; and no exception so set out which is not made the basis of an assignment of error may be considered on appeal. Provided, that upon any appeal duly taken from a final judgment any party to the appeal may present for review, by properly raising them in his brief, the questions whether the judgment is supported by the verdict or by the findings of fact and conclusions of law, whether the court had jurisdiction of the subject matter, and whether a criminal charge is sufficient in law, notwithstanding the absence of exceptions or assignments of error in the record on appeal."

There being no assignment of error in the record on appeal, the only question presented for our review by this appeal is the question, which was properly raised in appellant's brief, whether the judgment is supported by the findings of fact and conclusions of law. We hold that it is.

A common carrier is liable for the loss of or damage to property accepted by it for carriage except for loss or damage due to an act of God, the public enemy, the fault of the shipper, or inherent defect in the goods shipped. Merchant v. Lassiter, 224 N.C. 343, 30 S.E.2d 217 (1944). This rule applies to interstate as well as to intrastate shipments. Cigar Co. v. Garner, 229 N.C. 173, 47 S.E.2d 854 (1948). In its brief, defendant does not challenge this rule nor does it question the court's conclusion of law based on the facts found in this case that defendant was under a duty to deliver plaintiff's machine in as good condition as it was when defendant accepted it for shipment. Additionally, defendant does not challenge the court's conclusion that the machine was damaged in the course of transit while on the defendant's truck. Thus, defendant does not question its initial liability as a common carrier for the damage to plaintiff's property which occurred while it was being transported by the defendant.

Defendant's sole contention is that, as a condition precedent to recovery, plaintiff was required to file its claim in writing with the defendant within nine months after delivery of the property, that plaintiff failed to do this, and that the court was in error in making its conclusion of law "that the plaintiff was under no duty to file any further notice of damage or claims without being notified by the defendant to do so." The difficulty in defendant's position is that, on this record, it has failed to establish its major premise, i. e., that plaintiff was required, as a condition precedent to recovery, to file its claim within nine months after delivery of the property.

The Interstate Commerce Act, in 49 U.S.C. § 20(11), provides that it is unlawful for any common carrier "to provide by...