Newman v. Seaboard Air Line Railway Co. , 188 N.C. 341 ( 1924 )

Hoke, C. J.

It appears from tbe evidence tbat plaintiff’s tobacco, shipped with defendant as common carrier, was practically ruined in tbe course of shipment by negligence of defendant company. Not only is tbis tbe permissible inference from tbe respective conditions of tbe tobacco when received by tbe company at tbe point of shipment and its delivery at tbe place of destination, but there is direct evidence tbat same, put in a defective car originally, was transferred by tbe company in tbe course of shipment and placed in a car having a bole in tbe door, by reason of which it was rained upon and thereby so injured as to Tender it practically valueless. These positions have been established by tbe verdict and damages assessed and judgment rendered for tbe injury, less tbe additional freight for a tobacco shipment, conceded to be $25.00. And on tbe record we find no valid reason for disturbing tbe results of tbe trial.

There is nothing to contradict tbe plaintiff’s statement tbat tbe agent' who made out tbe bill of lading was informed tbat tbe tobacco was to be included in tbe shipment, and on tbe facts of tbis record, if be chose to describe tbe entire shipment as household goods, such an act should not be allowed to injuriously affect tbe plaintiff except to render him liable for tbe additional freight due for tbe actual character of tbe shipment, and tbis, under bis Honor’s charge, has been accounted for to defendant.

Even if tbe term household goods could not be extended to include tbe tobacco, it is fully recognized tbat a bill of lading is not an essential to a valid shipment and tbe liability of a common carrier may attach on a shipment by parol. Bryan v. R. R., 174 N. C., p. 177; Davis v. R. R., 172 N. C., p. 209; Smith v. R. R., 163 N. C., p. 143; Porter v. R. R., 132 N. C., p. 71; Berry v. R. R., 122 N. C., p. 1002.

It is insisted further for defendant tbat its motion for nonsuit should have been allowed because tbe shipment is in violation of tbe classifications introduced in evidence and requiring tbat leaf tobacco be shipped in bags, bales, bundles, etc. It is not at all clear tbat tbis tobacco when shipped was not in the shape referred to. The witness, I. D. Smith, an employee of the company testified that the tobacco was tied in bundles and put on sticks. But if the contrary be conceded, we do not understand that this classification is inhibitive in its terms or purpose or that it is to be regarded as an essential to a valid shipment. So far as discoverable from this record, it seems to be a provision inserted for the protection of the company and not directly bearing on the administrative regulations established primarily to prevent discrimination among shippers, and this being true, it could be waived by the company and should be considered waived on the facts as presented. And even if otherwise considered, the shipper being in no wilful default the only penalty enforceable would be the collection of the additional freight required by the schedules, and this, as we have seen, has been allowed for- in the verdict.

There is nothing in the disposition of the case that in any way cpn-flicts with our decision in Morris v. Express Co., 183 N. C., p. 144, cited for appellant. That was a case to some extent involving the rights, of a shipper and carrier in reference to the contents of a closed package, and representations concerning it permitting the inference of fraud. But no such question is presented here where it is not denied that the company and its agent were fully informed of what the shipper intended to place in the ear.

Ve find no error, and.judgment for plaintiff is affirmed.

No error.