Hockfield v. Southern Railway Co.

64 S.E. 181, 150 N.C. 419, 1909 N.C. LEXIS 67

• Court: Supreme Court of North Carolina
• Decided: April 7, 1909
• Status: Published

Opinion

Clark, C. J.

The plaintiff introduced two of the four paragraphs of the answer filed before the justice of the peace. The defendant offered the other two paragraphs. In Lewis v. Railroad, 132 N. C., 382, it is said: “Where a paragraph of an answer admits a specific fact, and in another part of the same paragraph denies the allegations of the corresponding paragraph of the complaint, the plaintiff is entitled to introduce the admission without introducing the part denying the allegations of the complaint.” Here the paragraphs of the answer put in evidence by the plaintiff were' complete in themselves, and it' was not error to exclude the distinct averments in its own interest made by the defendant. It could put on evidence in support of them at the trial. Stewart v. Railroad, 136 N. C., 385.

A transfer company was in the habit of hauling goods for plaintiff and others, but that only made it the agent of plaintiff as to goods actually hauled. There was no evidence that the transfer company was told to haul these goods, and it was not error to exclude a question asked of an agent of such transfer company to show notice given to him of plaintiff’s goods being in the depot, when there was no evidence that such notice, if given, was communicated to the plaintiff. The plaintiff testified that he applied for the goods in person repeatedly.

The court allowed the plaintiff to amend its complaint and the defendant to amend its answer, but not to plead the statute of limitations. The amendment did not set up a cause of action wholly different, but merely amended the complaint to claim the penalty of $50 under the Revisal, sec. 2633. Such amendment was in the discretion of the court; as was also the refusal of an amendment pleading the statute of limitations. Parker v. Harden, 122 N. C., 111; Godwin v. Fertilizer Co., 123 N. C., 162.

The fourth exception is abandoned. The fifth exception presents the contention that this is an interstate shipment, and that the Revisal, sec. 2633, does not apply. It is true that the shipment originated at Baltimore, Md., but it seems to have gotten “missent,” and left its route, wbicb was via Dunn, N. C., tbence over tbe Durham and Southern Railroad to Durham, N. C. The defendant’s answer avers that by reason of said error or mistake the Atlantic Coast Line Railroad Company “rebilled” the goods from Selma to Durham over defendant’s line, and that it received and transported the goods by virtue of said Selma to Durham bill of lading, and that the original waybill, or bill of lading, from Baltimore to Durham never came into its possession. Clearly this is an intrastate matter. But if it had been an interstate transaction the penalty imposed by the Revisal, sec. 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, but the defendant would not make out its freight charges nor deliver the goods. The penalty laid by the Revisal, sec. 2633, has been held not a burden on interstate commerce (Harrill v. Railroad, 144 N. C., 532) ; and, indeed, the failure to deliver freight is not interstate commerce. Morris v. Express Co., 146 N. C., 171.

Exception 6 is for refusal to permit defendant to amend its answer so as to plead the statute of limitations. This was a matter of discretion and not reviewable.

The defendant still has the goods, and the plaintiff has been sued by consignor and been forced to pay their value, with court costs added. There is no possible ground for defendant’s counterclaim for warehouse charges on goods it wrongfully withheld and refused to deliver.

No'Error.