McRary v. Southern Railway Co. ( 1917 )

The action was to recover damages for breach of contract of shipment of a lot of antique furniture over defendant railroad and others, made by R. S. McRary, at Lexington, N.C. on 2 November, 1914, consigned to Helen Ivey Company, plaintiff, at Germantown, Pa. Part of the furniture was lost and written notice of claim duly filed.

On denial of liability, there was verdict for plaintiff, assessing damages at $140. Judgment on the verdict, and defendant excepted and appealed. There seems to have been no written bill of lading introduced in evidence, but there was parol testimony offered by plaintiff to the effect that on 2 November, 1914, plaintiff R. B. McRary shipped over defendant road and others to his coplaintiff, Helen Ivey, at Germantown, Pa., a lot of antique furniture, and that a portion of said furniture was never delivered, in breach of the contract of shipment, and that the pecuniary damage sustained was $140 or more.

Judgment having been entered for plaintiff, pursuant to verdict, for that amount it is objected for defendant that there are facts in evidence which, as a matter of law, should limit plaintiff's recovery to a much less sum, but in our opinion this position cannot be sustained.

It is well established that the relationship of carrier and shipper may be created without any written bill of lading. Davis v. Norfolk andSouthern R. R., 172 N.C. 209; Smith v. R. R., 163 N.C. 143. It is also held that, in case of interstate shipments, while a written bill of lading should always be issued in evidence of the contract between the parties, if the same is omitted, the requisite stipulations of sale or contract as prescribed by the Federal statutes or valid regulations of the Interstate Commerce Commission will attach and govern the rights of the parties concerning it. Bryan v. L. and N. R. R. Co., present term; Tafts VanDykev. A. C. L. R. R., present term; Peanut Co. v. R. R., 166 N.C. 62; R. R.v. Mugg, 202 U.S. 242.

While these positions are fully recognized with us, we find nothing in the record which necessarily, or as a matter of law, should reduce the amount of plaintiff's recovery as established by the verdict. The written memorandum introduced and chiefly relied upon by defendant is entirely too indefinite to be allowed any such effect.

Acknowledging that a bill of lading has been issued, it begins with the statement that "it is not the original bill of lading nor a copy nor a duplicate covering the property named, but is intended solely for filing." The only signature appearing on (565) the paper and purporting to be that of the agent, signed, it seems, by the billing clerk, is prefaced by the statement that "the signature here acknowledges the amount prepaid," and the paper, at most, can only be considered as a receipt for so much money prepaid on the shipment. If it be conceded that this memorandum also contains evidence tending to show that the goods were shipped released and on a valuation limited to $5 per hundred pounds, and with testimony ultra to the effect that the weight of the goods actually lost was not more than 285 to 305 pounds, there are also facts in evidence to the effect that the weight of the entire shipment was much greater; that it consisted of a lot of antique furniture, a portion of it in sets, and permitting the inference that a loss of a part might very well cause substantial damages to the remainder and in weight more than sufficient to justify the verdict even at the limited valuation. It is the recognized principle that the appellant is required to show error (Oil Co. v. Burry, at the present term; In reSmith's Will, 163 N.C. 464), and if the view suggested should be accepted by the jury, there is nothing which necessarily restricts plaintiff's recovery below the sum established by the verdict, and the exceptions of the defendant presenting the position must be overruled.

It is further shown that the consignee, Helen Ivey, in presenting her claim, stated the amount of damages at $110, and it is insisted that she should not be allowed to recover a greater sum, but in this requirement usually provided for by a clause in the bill of lading, the amount demanded is not ordinarily of the substance and is not required to be given in making the claim. The provision is inserted and upheld as a reasonable stipulation more especially for the purpose of notifying the carrier that a claim for damages is made and directing its attention to the matter at or near the time, and with a view of enabling it to procure evidence disclosing the real facts of the transaction, and unless there had been a payment in satisfaction or adjustment of the claim, we see nothing that should estop the plaintiff from a recovery of her actual loss. This seems to be a proper deduction from authoritative cases dealing with the subject, as in St. Louis, etc., R. R. v. Starboid, Admr., decided 30 April, 1917, Advance opinion, U.S. Supreme Court, L.R.A. Pub. Co. p. 462, where it was held, among other things, that the notice in writing stipulated for in a bill of lading need not give the amount of damages claimed.

It may be well to note that the facts of this transaction are of date prior to the Cummins Amendment, enacted 4 March, 1915, chap. 176, 38 U.S. Statutes, p. 1196, and the effect of such amendment on stipulations of this character have been in no way considered. Bryan v. R. R., supra.

We find no error, and the judgment for plaintiff must be affirmed.

No error.

Cited: Mann v. Transportation Co., 176 N.C. 108; Aman v. R. R.,179 N.C. 313; Schroader v. Express Agency, 237 N.C. 459.

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