Hamlet Grocery Co. v. Southern Railway Co.

170 N.C. 241

Opinions

Waleer, J.,

after stating the case: We will consider the case upon three questions:

First. Plaintiff was not the consignee named in the bill of lading, which contains the full contract with the carrier for the transportation and delivery of the tobacco. In the first place it is stated in the case that he had sold the goods to the Farmers Furnishing Company, and therefore the property in them passed at once to it. Secondly, the latter company was the consignee, according to the contract of shipment, and was so designated in the bill of lading. When the goods were lost and it transferred its claim to plaintiff, the property in the goods did not pass and plaintiff did not thereby become consignee, but only acquired the right to sue for the damages, or the value of the goods. Neither the Farmers Furnishing Company nor the plaintiff, nor both of them, had the right to change the contract of shipment, or the relation of the parties thereto, by making the plaintiff the consignee against the will or without the consent of the defendant as carrier. The plaintiff, by the transfer to him by the Farmers Furnishing Company, acquired a chose in action, or the right to recover the value of the goods as damages for a breach of the contract, as upon a conversion of them, and in no sense did he become consignee. Nor can the plaintiff recover as consignor. By selling the goods to, the plaintiff, and also by having them shipped by the Eeynolds Tobacco Company on an open bill of lading to the Farmers Furnishing Company, the absolute property in the goods passed to the latter and plaintiff retained no interest, legal or beneficial, in the goods. His only claim was for the price thereof, and he has not since acquired any interest in the goods as consignor, no more than he has as consignee, as we have shown, because the transfer to him was only for the value of the goods or damages, due to the Farmers Furnishing Company for their loss, that is, he got an open account for a sum of money due to it, and nothing more.

Second. If he had been consignor or consignee, he has not presented his claim as required by the statute, which requires that it shall be filed with the agent of the company that lost the goods; if it is the last carrier in the course of the shipment, then with his agent at the point of destination,” and if an intermediate carrier, then with his agent at the point of his delivery to another carrier, or at the point of origin by the consignor, if he has retained the ownership of the goods. The claim was filed with the agent of the A. & R. R. Company at Eaeford, N. 0., the point of destination, but that company did not lose the goods, as the case states, but the defendant company. Nor is the A. & E. E. Company sued in this action. It was not filed with defendant’s agent at the point where it delivered the goods to the next carrier in the route, nor was it filed by the consignor “at the point of origin,” even if he had any right to file it at all, and certainly he did not have this right as consignor. It is familiar learning that penal statutes must be strictly construed, and the plaintiff, before he is entitled to recover the penalty, must bring his case strictly within the language and meaning of the statute. They must be construed sensibly, as all other instruments, but not liberally, so as to stretch their meaning beyond what the words will warrant. 36 Cyc., 1185, 1186, 1181; Sears v. Whitaker, 136 N. C., . The Court, in Alexander v. R. R., 144 N. C., 93, 99, discussing a statute of the same kind as the one'under consideration, said: “Applying the rule by which courts should be guided in the construction of a penal statute, Bynum, J., in Coble v. Shoffner, 75 N. C., 42, says: ‘It cannot be construed by implication, or otherwise than by express letter. It cannot be extended, by even an equitable construction, beyond the plain import of its languáge. If, therefore, even the intent of the Legislature to embrace such a case was clear to the Court from the statute itself, we cannot so extend the act, because such a construction is beyond the plain import of the language used.’ It is said that we should see in the statute the evil intended to be remedied, and so construe it that such evil may be repressed and the remedy advanced. This is undoubtedly the general rule in the construction of statutes. This suggestion has been heretofore made and disposed of by the same learned judge. ‘In construing a penal statute, we are not allowed, as in the case of those which are not penal, to look at the motives or the mischief which was in the legislative mind. The rule is peremptory that the case must fall within the plain language of a penal statute before the penalty can attach.’ Ib., 44. As was said by Mr. Justice Ashe in Whitehead v. R. R., 87 N. C., 255: ‘The rigid rules of the common law with reference to the liability of common carriers should not be applied to a case involving the violation of a penal statute.’ Such has been the uniform rule of construction from the earliest times.”

And in Cox v. R. R., 148 N. C., 459, 460, the Court said, in discussing the same subject: “It is a well-established principle of law, applicable to corporations and individuals alike, that penal statutes are strictly construed, and that he who sues to recover a penalty awarded by the law must bring his case clearly within the language and meaning of the law. Sears v. Whitaker, 136 N. C., 37; Appenheimer v. R. R., 64 Ark., 27; 26 Am. and Eng. Enc. (2 Ed.), p. 658.” So we see that, by this ancient rule of the law, which has ever been approved and sanctioned by the courts, even to the present time, as one that is reasonable and just, we must hold the plaintiff to the strictest construction, and not broaden the meaning of the statute in his favor to include a case not within the words and, therefore, not within its intention. It seems that he has failed, at every point, to show his right to the penalty he now claims. It is ’not necessary to decide whether a penalty, such as this one is, can be assigned, for it has not been transferred, but only the debt, using that word in its general and comprehensive sense as meaning a sum of money due from one to another without regard to the form of the obligation or the manner in which it accrued.

Third. It appears that plaintiff, if he had any cause of action, has not filed his claim in due and proper form. The defendant, as carrier, was not bound to pay a claim to anybody who might present it. but only to the consignor or consignee named in the bill of lading, or if his claim for damages had been assigned, then there must be some reasonably satisfactory evidence of the assignment before he would be bound to pay, otherwise the carrier might be subjected to a double or even a greater liability. The ownership of the claim by the one who files it should be authenticated in some way. His mere assertion of ownership will not do. The carrier must make a true delivery, for, like any other bailee, he will act at his peril if he delivers to any one but him svho is entitled to receive the goods, and he is, therefore, entitled to evidence that the demand upon him is rightful. Here the bill of lading was not produced duly endorsed to plaintiff, or any other reliable evidence of his right to claim the damages tendered. The defendant was consequently in the exercise of its right when it refused to pay. 6 Oyc., 470, 471, 472. In this case, so far as the record shows, and the bill of lading, the consignee, Farmers Furnishing Company, was the only one entitled to receive the goods or to recover for their loss, as there was no legal evidence to the contrary.

It is suggested that defendant admitted the claim for damages, and therefore the right to recover the penalty followed as an incident. But this is not a logical, legal or just conclusion. The recovery of the claim for damages rests upon principles far different from those which entitle plaintiff to the penalty. The latter is governed by the provisions of the statute, and the former by the rules of the common law. It is admitted that the alleged right to the penalty was not assigned, and plaintiff does not sue as assignee, but as the “real consignor,” and as (therefore) the party aggrieved who is entitled to recover the penalty. But if he is the consignor, it was a condition precedent to his right to recover the penalty that he should have filed his claim at the place where the shipment originated, for the statute so provides. But the plaintiff was not the nominal or real consignor, who was the shipper, and, besides, as the goods were shipped on an open bill of lading the title passed, at once, on receipt of the goods by the carrier, to the consignee, and the consignor, even Eeynolds & Go., lost all interest in them, as much so as if they had sold and actually delivered them to the consignee, the Farmers Furnishing Company at Eaeford, N. C. It is not a fact which appears in the record, nor is it true according to plaintiff’s own showing, that the latter company gave to the plaintiff a statement of the consignee, which was attached to the claim- of loss filed with the railroad company (not this defendant) at Eaeford, showing that the plaintiff alone, by assignment, was interested in the loss, even if this would have availed the plaintiff so as to entitle it to recover the penalty.

The claim for damages contained only plaintiff’s own statement of certain matters upon which defendant, if the claim had been filed with it, was not bound to rely, or to accept as true. It is further contended that defendant should have objected, when the claim was filed at Rae-ford, that it was not done at Winston, the place from which the shipment started, the answer to which is conclusive, that there is only one earner sued, the Southern Railway Company, and it was not at Rae-ford to object when the claim was filed; and it may be added that the claim never was filed with this defendant, as the statute provided that it should be. It was not required of this defendant to state the grounds of objection to a recovery of the penalty, when the claim foii damages was filed with another company, or even if it had been properly filed with it. It denied the plaintiff’s right to recover the penalty, and it was then incumbent on the plaintiff to show that the penalty had accrued to it in the manner provided 'by the statute, which requires that a precise demand shall be made, in a specified way, and at the proper place, before any penalty shall be recovered. As the goods were lost on the line of defendant (Southern Railway Company), the claim and demand should have been made on it at the point where it delivered the goods to the next carrier in the line of transit. And this was not done, and nothing like it was done. This defendant never agreed to pay the claim for damages before this suit was brought, but after the case had passed from the court of the justice of the peace it agreed, in order to save costs, that judgment might be entered for the damages, as it would be ultimately liable for them, but it never waived anything in respect to plaintiff’s right to recover a penalty. It is not true, according to the record, in law or in fact, that R. J. Reynolds Co. had no interest in the shipment, and that the consignee at Raeford had none. As we have shown beyond any cavil of doubt, the Farmers Furnishing Company, the consignee at Raeford, had the entire interest in the goods when they were delivered to the carrier at Winston upon an open bill of lading. Buggy Corp. v. R. R., 152 N. C., 119; Gaskins v. R. R., 151 N. C., 18; Stone v. R. R., 144 N. C., 220; Hunter v. Randolph, 128 N. C., 91.

Justice Ilohe made this plain in Buggy Corporation v. R. R., supra, citing some of the above cases, when he said: “The principle indicated has of late been more frequently recognized and applied with us in actions against common carriers under the penalty statutes of the State in defining who is the ‘party aggrieved,’ designated in most of them as the person who may bring the suit, as in Stone v. R. R., 144 N. C., 220, but they are made to rest on the principle that where a vendor ships goods to a purchaser by a common carrier whose lines afford the usual route and ordinary method of shipment, and on a bill of lading of the kind described, the earner is considered the agent of the vendee, and on delivery to such carrier the title passes to such vendee, and thereafter, nothing else appearing, he is the real party interested in the proper performance of tbe contract. Hunter v. Randolph, 128 N, C., 91. And in Gaskins v. R. R., 151 N. C., 18, tbe doctrine was applied to a case directly involving tbe right of a consignor to maintain a suit for damages, wben it appeared, without more, that tbe goods bad been shipped to a purchaser on an open bill of lading; and it was held that tbe action would not lie.”

There is not tbe slightest evidence in this record that tbe plaintiff, as tbe seller of tbe goods, retained any interest whatever in them, but tbe entire property in them passed to tbe consignee, leaving to it only a cau.se of action for tbe price. Tbe buyer (consignee) bad no legal right to charge tbe goods back to tbe seller without bis consent, as tbe latter bad sold and delivered them to tbe carrier, and even with it be could not be made consignee, or restored to the position of consignor, if be ever held that relation to tbe shipment. There is no such alchemy known to tbe law.

We need not discuss tbe question as to tbe assignment of tbe penalty, as it was never assigned, as a fact, and besides if a penalty is generally assignable, this consignee could not assign tbe one claimed by tbe plaintiff, as it never bad any right to it, not having complied with tbe law which imposed it.

This case is not like Horton v. R. R., post, 883, for there tbe nominal consignee was tbe agent of bis wife, the real owner, and therefore tbe “consignee aggrieved,” within tbe words and meaning of tbe statute, and entitled to receive tbe goods and sue for tbe damage to them, as they bad been injured. We applied there tbe law of agency, and, as tbe plaintiff was acting through another as- agent, it was tbe same as if she bad been personally present and acting herself and in her own name (Qui facit per alium, facit per se). But here tbe Farmers Furnishing Company was not agent for plaintiff, but was nominally tbe consignee and really so, as it was acting for itself, being both legal and beneficial owner of tbe goods.

Tbe judgment is reversed as to tbe penalty, and judgment will be entered in tbe court below in favor of plaintiff for $34, with interest and costs to tbe date of tbe tender admitted.

Eeversed.