Opinion
(Filed 10 December, 1913.)
1. Carriers of Goods — Refusal to Deliver — Valid Excuse — Burden of Proof.
Where a consignee brings his action to recover the value of a shipment of goods from the carrier, shows that the shipment was addressed to him, was prepaid, in the carrier's possession at destination, and a demand for delivery, the burden is on the carrier to show a valid reason for its refusal to deliver the shipment.
2. Carriers of Goods — Contracts of Shipment — Parol Contracts.
A parol contract of shipment made with a common carrier is valid in law.
3. Carriers of Goods — Refusal to Deliver — Demand of Bill of Lading — Valid Excuse — Burden of Proof.
The failure or refusal of a consignee to produce, upon the carrier's demand, a bill of lading for a prepaid shipment of goods in the carrier's possession is ordinarily a valid defense to an action to recover of the carrier the value of a shipment, which has never been delivered, but the burden is upon the carrier to prove that such demand has been made and not complied with.
4. Same — Fraudulent Transfer — Presumptions.
Where a prepaid shipment of goods is in the carrier's possession at its destination; addressed to the consignee, and the demands delivery thereof to him, he is entitled to the goods, nothing else appearing; for while the bill of lading is assignable, it will not be presumed that in a given instance it has been assigned, without evidence thereof, and the burden is upon the carrier to prove the consignee's fraudulent intent in making his demand without producing his bill of lading, when such is relied on by it as a reason for refusing delivery.
5. Carriers of Goods — Interstate Commerce — Federal Questions — Practice — Penalties.
In an action to recover the penalty for the refusal of the carrier to deliver an interstate shipment of goods, the exception that such recovery would impose a burden upon interstate commerce must be taken upon the trial and in the appellant's brief in order for the Federal question to be made available; but it is Held, that a penalty recoverable for the refusal of delivery and the failure to settle a claim based thereon after the arrival here of the shipment and while in the carrier's possession, does not raise a Federal question. Revisal, secs. 2633, 2634.
6. Carriers of Goods — Penalty Statutes — Actions.
A recovery of the value of a shipment of goods and the penalties for the refusal of the carrier to deliver (Revisal, sec. 2634) and for the failure to settle the claim within the statutory period, may be united in the same action.
ALLEN, J., concurring; BROWN, J., dissenting in part; WALKER, J., concurring in the dissenting opinion.
APPEAL by defendant from Bragaw, J., at March Term, 1913, of ANSON.
Gulledge Boggan for plaintiff.
W. E. Brock and Murray Allen for defendant.
This is an action begun before a justice of the peace to recover for the loss of a shipment of goods (molasses) of the value of $18.75, and the penalty of $50, under Revisal, 2633, for failure and refusal of the defendant to deliver said goods upon demand of plaintiff while it was lying in their station after arrival at Wadesboro, N.C. and also for the penalty of $50 under Revisal, 2634, for the failure of the defendant to settle and pay for the loss of said goods its value ($18.75) within four months from the time the claim was filed with the defendant.
(226) By agreement, the issue as to the value of the goods was answered $18.75.
The plaintiff's evidence is that in March, 1912, he went to the Seaboard station, saw his goods lying in the station, and requested delivery; that the agent did not demand a bill of lading of him, but said he could not deliver because his waybill had not been received; that in fact he did not get a bill of lading till it was mailed to him from Charlotte, 30 December, 1912. He offered to pay freight, but the defendant admits that the molasses came freight prepaid. It was also in evidence that the plaintiff filed his bill for the loss of the goods, $18.75, on 15 October, 1912, and this bill had not been paid yet. The goods were not delivered to plaintiff, but were sold by the defendant.
The sole controversy seems to arise upon the evidence of the defendant's agent, who in contradiction to the plaintiff testified that he demanded the bill of lading of the plaintiff. He testified that the molasses came on a "stray shipment," and that he himself had received no waybill, and that they had no evidence whence the shipment came, as the bill was sent out from Charlotte. It was afterwards ascertained that the goods in fact were shipped from New Orleans, and were received by the defendant at Charlotte and transported over its line to Wadesboro.
The defendant excepted because the court charged the jury: "If you find that these goods were in the possession of the defendant, and were the same goods that the plaintiff purchased, that, is, if you answer the second issue `Yes,' then the burden is on the defendant on this third issue to satisfy you that it demanded of Mr. Jeans that he produce the bill of lading, and that it was because of his failure to produce the bill of lading that they failed and refused to deliver the shipment of goods." The jury by their answer found that the defendant did not demand the bill of lading, and that its nonproduction was not the cause of its failure and refusal to deliver the molasses. The plaintiff testified that the reason given by the agent was that the defendant itself had not received its way bill.
It is not clear that any bill of lading was issued, for the defendant testified that he received none till one was sent him from Charlotte, 30 December following. There being no "waybill," the goods were rebilled from Charlotte to Wadesboro.
As the goods were lying in the station at Wadesboro, and it is (227) not contradicted that they were the property of the plaintiff, and the defendant's testimony is that the freight was prepaid, the burden, as the judge correctly charged, was upon the defendant to show good cause for a refusal to deliver. Whether the failure to produce the bill of lading on demand was such good cause or not, does not arise, as the jury found that it was not demanded and was not the reason for the failure to deliver. A shipment without bill of lading and by parol is valid at common law.
In Dunie v. R. R., 161 N.C. 522, Brown, J., says: "The burden of proof of delivery of the goods, the receipt thereof being admitted, is cast by law on the defendant. And upon failure to satisfy the jury by the preponderance of evidence that the case of goods was delivered, the defendant is liable for its value." It follows, therefore, that the goods being in the possession of the defendant, and it being admitted that the plaintiff made demand for delivery and they were not delivered, the burden must be on the defendant to show cause for its refusal.
There is no presumption that the bill of lading had been assigned by the plaintiff. The goods directed to him were lying on the floor of the warehouse, marked in his name. It is admitted that the freight was prepaid. When, therefore, he demanded possession of the goods, nothing else appearing, he was entitled to them. If there is any reason why they should not have been delivered, the burden was upon the defendant, as warehouseman, to show it. The defendant had a right to require a bill of lading, and if it did, and the plaintiff had refused to produce same, this would have been an excuse, unless the plaintiff had shown, as he could, that he had not received any bill of lading, and, therefore, had not assigned it. There is no presumption that the plaintiff had assigned the bill of lading and was endeavoring to get possession of the goods by false pretenses, a penitentiary offense. While the defendant had a right to demand the bill of lading, or proof of its nonreceipt, the burden was upon the defendant, as the judge properly charged, to show that fact in excuse of his failure to deliver goods addressed to the (228) plaintiff, on which all charges had been prepaid. Any other ruling would reverse the rule, that the plaintiff having made out a prima facie case by demanding goods addressed to him, matters in excuse must be shown by the bailee. It would be very inconvenient in practice if farmers and other consignees in the country sending their wagons, often many miles, to the railroad station for fertilizers and meat or other articles should have the wagons sent back without any excuse, when if the bill of lading had been demanded, it would be produced. A bailee who refuses to deliver goods belonging to the bailor, prima facie by virtue of its receipt addressed to him, must show matters in excuse.
It is not suggested in defendant's brief here, nor by any exception taken on the trial below nor in this Court, that the failure to deliver, after the receipt of the goods in the warehouse at Wadesboro, raises a Federal question. Such question cannot be raised in any other way. But as the point is suggested, it is only necessary to say that it has been often passed on in this Court.
In Harrill v. R. R., 144 N.C. 537, Walker, J., says: "A railroad company owes it as a common-law duty to deliver freight upon the payment of charges by the consignee (here they were prepaid), and in the absence of a conflicting regulation by Congress, Revisal, 2633, imposing a penalty upon default of the railroad company therein, is constitutional and valid, and is an aid to, rather than a burden upon, interstate commerce," citing United States decisions.
In Morris v. Express Co., 146 N.C. 167, Hoke, J., held that the failure to deliver freight after its arrival at the destination in this State and after being placed in defendant's warehouse is not interstate commerce, citing R. R. v. Solan, 169 U.S. 137, and many other United States decisions.
In Hackfield v. R. R., 150 N.C. 422, it is held by a unanimous Court: "The penalty imposed by the Revisal, 2633, has nothing to do with interstate transportation, but deals only with the neglect of duty of the defendant after the transportation was fully completed and the goods lay in its warehouse — not in the cars — at Durham. The plaintiff demanded his goods again and again (as in this case), (229) but the defendant would not make out its freight charges nor deliver the goods. The penalty laid by the Revisal, 2633, has been held not a burden on interstate commerce ( Harrill v. R. R., 144 N.C. 532); and, indeed, the failure to deliver freight is not interstate commerce. Morris v. Express Co., 146 N.C. 171."
"There is no exception as to the penalty of $50 for failure to settle the claim within four months after filing, as authorized by Revisal, 2634. But if it had been, this has been held not a violation of interstate commerce, in Iron Works v. R. R., 148 N.C. 470, citing Efland v. R. R., 146 N.C. 135; Morris v. Express Co., ib., 167; Harrill v. R. R., 144 N.C. 540; Cottrell v. R. R., 141 N.C. 383, in all which that point has been thoroughly discussed.
It may be noted that Revisal, 2634, has been somewhat changed and amended by Laws 1911, ch. 139, in which it is expressly provided (though it was not necessary to do so, Robertson v. R. R., 148 N.C. 323) that "causes of action for the recovery of the possession of the property shipped, for loss or damage thereto, and the penalties herein provided for, may be united in the same complaint."
No error.