Anderson v. American Railway Express Co.

121 S.E. 354, 187 N.C. 171, 1924 N.C. LEXIS 254

• Court: Supreme Court of North Carolina
• Decided: February 20, 1924
• Status: Published

Opinions

ADAMS, J., concurring; CLARKSON, J., concurring in the opinion of ADAMS, J. The plaintiff, in Clay County, N.C. in February, 1922, killed and dressed a hog, weighing 595 pounds, and on the next day delivered it to the defendant express company to be shipped to Dr. Cutts, president of Willingham School, at Blue Ridge, Ga. The evidence is that the hog was loaded on a wagon on the evening of the 15th and allowed to remain out all night, the weather being very cold, and was started next morning about sunrise to Murphy, and delivered that morning to the defendant, who accepted the shipment. On its arrival at Blue Ridge, Ga., it was delivered to the agent of the consignee and carried out to the consignee. It was then discovered that the meat was badly damaged.

Immediately on discovery of its unusable condition, it was sent back by the consignee, who declined to accept it, because "badly spoiled and unusable," to the agent of the defendant at Blue Ridge, who, upon examination, said it was in bad condition, and told the servant of the consignee to "take it out and dump it" — that is, bury it — which was done.

The evidence is, that the weather of 15, 16, and 17 February was very cold; that the plaintiff used great care in dressing said hog, and selected this cold spell in which to kill it, and it was in good condition when delivered to the agent of the defendant at Murphy for shipment. The plaintiff alleges negligence, in that the hog was damaged in the transportation thereof, in that it was placed in a car, close to a heated stove, whereby it was damaged and spoiled before reaching its destination and the consignee.

At the close of all the evidence the defendant moved for a nonsuit, which was granted, and the plaintiff appealed. This being a nonsuit, the evidence for the plaintiff must be taken as true and in the most favorable aspect for him. It is true, as a general principle, that when there is a shipment by a common carrier upon an open bill of lading it becomes the agent of the consignee, but, as said by Hoke,J., in Buggy Corp. v. R. R., 152 N.C. 122, "It may be shown that, owing to the carrier's default, the parties have rescinded the contract and restored the title to the consignor before the action brought, as in R. R.v. Guano Co., 103 Ga. 590." That case held that "where a consignee of freight refuses to receive goods on account of damage done to them in the hands of the common carrier, and the goods are subsequently thrown back on the hands of the consignor, the latter has a right to bring an action for such damage against the carrier. And other qualifying conditions might be suggested."

The above principle has been cited and approved in Aydlett v. R. R.,172 N.C. 49, where, citing from the above case, and upon testimony almost identical with this, this Court said: "On account of bad condition of potatoes on arrival, the consignee refused to receive them and notified the consignor at once." Here the consignee refused to accept the shipment, and promptly notified the carrier. This Court held, in Aydlett's case: "As a general rule, it is true that where goods are shipped upon an open bill of lading, the title passes to the consignee at the time they are delivered to carrier, and any ensuing damages must be recovered by consignee, etc. Notwithstanding this general rule, it is open to the consignor to show that the goods were shipped on consignment, or that, owing to peculiar circumstances, by agreement between himself and the consignee, the title had revested in the consignor while the goods werein transitu, and that the consignor had a pecuniary interest in the proper performance of the contract of shipment. The identical case is presented inR. R. v. Guano Co., 103 Ga. 590, where it is held that where a consignee of freight refuses to receive goods on account of damage done to them in the hands of the common carrier, and the goods are subsequently thrown back on the hands of the consignor, the latter has a right to bring action for such a damage against carrier. This case is cited with approval by this Court in Buggy Corp. v. R. R., 152 N.C. 122." Nothing is said here about an agreement to rescind.

Upon this nonsuit the testimony for the plaintiff must be taken as true that this shipment was in good condition when delivered to the express company and badly spoiled when it arrived at its destination, and the defendant put on no evidence to contradict either statement. Dr. Cutts testifies that he did not pay for it because it was spoiled and unusable. The defendant's witness, its agent at Blue Ridge, testified that it was badly spoiled when it was delivered there.

It is very certain that the consignee could not sue for the damage, for he refused to accept the goods because it was spoiled; and if the consignor cannot sue, it would follow that the defendant would be liable to no one for negligence in the transportation of the shipment. The refusal of the consignee to accept the shipment because spoiled, and of the consignor in bringing this action, are the equivalent of an express agreement to rescind, and, indeed, a rescission in itself.

We think, therefore, that the case should have been submitted to the jury as to whether the shipment was damaged by the negligence of the defendant, and that the plaintiff is entitled to maintain this action upon the evidence set out.

New trial.