Scott v. American Ry. Express Co.
| Decision Date | 01 April 1925 |
| Docket Number | 226. |
| Citation | 127 S.E. 252,189 N.C. 377 |
| Parties | SCOTT ET AL. v. AMERICAN RY. EXPRESS CO. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Duplin County; Daniels, Judge.
Action by I. C. Scott and another, trading as Scott Bros., against the American Railway Express Company. Judgment for plaintiffs, and defendant appeals. No error.
Finding of negligence held to sustain jurisdiction of superior court.
Civil action to recover damages for an alleged negligent loss in transit of a shipment of shoes. The following judgment was rendered in the cause "This cause coming on to be heard before his honor, F A. Daniels, at the December term, 1924, and the parties having waived trial by jury and agreed for the court to find the facts and enter judgment accordingly, from the admissions of the parties and of the pleadings, and from the presumption of negligence arising from the admitted failure of defendant to deliver to plaintiffs the shoes mentioned in the complaint, the court makes the following findings of fact:
(a) The action is to recover the value of 12 pairs of shoes the complaint alleging that defendant carelessly and negligently failed to transport and deliver the shoes to plaintiffs, and carelessly and negligently lost said shoes in transit, to plaintiffs' damage in the sum of $57.
(b) The defendant admits, and the court finds same as a fact, that the shoes were received and accepted by defendant on September 29, 1920, at its office in the city of Milwaukee, Wis., for transportation to plaintiffs, at Rose Hill, N. C.; that an express receipt for the shoes was then issued by defendant to plaintiffs' vendor; that the shoes have never been delivered to plaintiffs; and that the value of the shoes was $57. But defendant denies negligence, and as a bar to plaintiffs' right to recover, sets up and pleads section 7 of the express receipt issued to plaintiffs' vendor. That said four cases of shoes moved under a contract for shipment known as the uniform express receipt, as prescribed by the Interstate Commerce Commission. Section 7 of which contained the following language:
(c) Suit was instituted within the two-year period mentioned in the express receipt, but the claim was not filed or made in writing within the 4-month period mentioned in said express receipt, nor within four months after a reasonable time for delivery had elapsed.
(d) The court further finds that the failure of defendant to make delivery of the shoes was negligent, and that plaintiffs were thereby damaged and sustained a loss in the sum of $57.
Upon the foregoing findings of fact, the court is of the opinion, and so holds, that plaintiffs' claim for the loss and nondelivery of the shoes is within the exception to the requirement for filing within the four months mentioned in the express receipt; that the claim is not thereby barred, and that plaintiffs are entitled to recover of defendant the sum of $57, with interest thereon from October 9, 1920."
Defendant excepts and appeals.
Robert C. Alston, of Atlanta, Ga., Rivers D. Johnson, of Warsaw, and Blair Foster, of Atlanta, Ga., for appellant.
Oscar B. Turner, of Rose Hill, for appellees.
The facts are to be found in the judgment of the superior court, which will be reported herewith.
The case presents but a single question for decision. It is this: Are the words, "damaged in transit by carelessness or negligence," as used in the "Cummins amendment" of March 4, 1915 (U. S. Comp. St. § 8604a), and in the contract of shipment, approved by the Interstate Commerce Commission and known as the uniform express receipt, broad enough to include, and were they intended to include, a total loss in transit occasioned by the carrier's carelessness or negligence? Or, stated differently, Does a negligent loss in transit come within the exception "damaged in transit by carelessness or negligence," rendering it unnecessary, as a condition precedent to recovery, to file written notice of claim with the originating or delivering carrier within four months after a reasonable time for delivery has elapsed? We think the question must be answered in the affirmative.
It is the position of the plaintiff, and such was adopted by the court below, that these words are sufficiently comprehensive to include, and were intended to include, a total loss in transit occasioned by carelessness or negligence as well as a partial loss by damage in transit from carelessness or negligence. The defendant takes a contrary view. It says the exception applies, not to loss in...
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