Scott v. American Railway Express Co.

Stacy, C. J. The facts are to be found in the judgment of the Superior Court, which will be reported herewith. *379 Tbe ease presents but a single question for decision. It is tbis: Are the words, “damaged in transit by carelessness or negligence,” as used in the “Cummins Amendment” of 4 March, 1915, and in the contract of shipment, approved by the Interstate Commerce Commission and known as the uniform express receipt, broad enough to include, and were they intended to include, a total loss in transit occasioned by the carrier’s carelessness or negligence? Or, stated differently, does a negligent loss in transit come within the exception “damaged in transit by carelessness or negligence,” rendering it unnecessary, as a condition precedent to recovery, to file written notice of claim with the originating or delivering carrier within four months after a reasonable time for delivery has elapsed? We think the question must be answered in the affirmative. It is the position of the plaintiff, and such was adopted by the court below, .that these words are sufficiently comprehensive to include, and were intended to include, a total loss in .transit occasioned by carelessness or negligence as well as a partial loss by damage in transit from carelessness or negligence. The defendant takes a contrary view. It says the exception applies, not to loss in transit, but to damage in transit; that loss and damage are not synonymous, and cites the following authorities as supporting, either directly or in tendency, its position: St. Sing v. Express Co., 183 N. C., 405, 111 S. E., 710; Kahn v. Express Co., 88 W. Va., 17, 106 S. E., 126; Allen v. Davis, 118 S. E. (S. C.), 614; Lissberger v. Bush Terminal Co., 197 N. Y. Supp., 281; Henningsen Produce Co. v. Express Co., 152 Minn., 209, 188 N. W., 272; Farmers & Mer. Bk. of Samson v. Express Co., Ala., , only recently decided and not yet reported. It is conceded that the plaintiffs’ position and the judgment entered below are sanctioned by the following authorities: Holmes & Dawson v. R. R., 186 N. C., 58, 118 S. E., 887; Davis v. Lbr. Co., 122 S. E. (Va.), 113; Gillette Safety Razor Co. v. Davis, 278 Fed., 864. Defendant contends that our decision in the Holmes & Dawson case is in direct conflict with the decision in the St. Sing case, but an examination of the two cases will disclose that the former was an action in tort based on an allegation of damage in transit by reason of the defendant’s negligence, while the latter was an action for damages “suffered by breach of defendant’s contract of carriage.” There was no contention in the latter case that the loss or damage was occasioned by the carelessness or negligence of the defendant. The one was brought directly under the exception in question, the other without regard to it. The two cases, therefore, instead of being in conflict, are entirely consistent and quite easily distinguishable. See Hailey v. Oregon, etc. R. *380 Co., 253 Fed., 569, for satisfactory reasons pointing out the difference between proceeding in a tort action and one based on contract under the statute now in question and Barrett v. Van Pelt, 69 L. Ed., decided 13 April, 1925. The case at bar is one sounding in tort. If it were not, a justice’s court alone would have had original jurisdiction of the action as the amount involved is only $57.00. Machine Co. v. Burger, 181 N. C., 241. Suit was commenced by summons issued out of the Superior Court. The finding of negligence on the part of the carrier sustains the jurisdiction and brings the case within the exception, “damaged in transit by carelessness or negligence.” The pertinent provisions of the “Cummins Amendment,” approved 4 March, 1915, are as follows: "Provided further, that it shall be unlawful for any such common carrier to provide by rule, contract, regulation or otherwise a shorter period for giving notice of claims than ninety days and for the filing of claims for a shorter period than four months, and for the institution of suits than two years: Provided, however, that if the loss, damage or injury complained of was due to delay or damage while being loaded or unloaded, or damaged in transit by carelessness or negligence, then no notice of claim nor filing of claim shall be required as a condition precedent to recovery.” In the provisions of the act preceding the provisos (set out in full in Mann v. Transportation Co., 176 N. C., 107) the carrier, on receiving property for an interstate shipment, is required to issue a receipt or bill of lading therefor and is made “liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it or by any common carrier to which such property may be delivered,” etc. This being an interstate shipment, the rights and liabilities of the parties are to be determined by the federal law. Ga., Fla. & Ala. Ry. Co. v. Blish Milling Co., 241 U. S., 190; Adams Ex. Co. v. Croninger, 226 U. S., 491. There has been no authoritative decision by the Supreme Court of the United States covering the exact point here presented. The decisions of courts of lesser jurisdiction, as above indicated, are not in harmony. In this state of the law, we must adopt that interpretation which, to us, seems more in keeping with the true intent and purpose of the law-making body and the parties to the contract of carriage. We think the judgment of the Superior Court should be upheld. Mann v. Transportation Co., supra. It is suggested that there may be a valid reason for requiring notice of claim to be filed in case of total loss which does not exist in ease of damage in transit by carelessness or negligence, in that the carrier has notice of the damaged condition of the goods while in its possession and at the time of delivery and might not have such notice of a total *381 loss of a shipment in transit. This argument would seem to be without special merit, because it is a matter of common knowledge that all carriers, issuing bills of lading and express receipts, keep records of shipments made over their lines; and, from such records, information of nondelivery is just as easily had as notice of negligent injury or damage in transit. There can be no difference in principle, as regards the duty to exercise diligence, between the loss in transit of a part or all of a shipment of goods, and damage in transit by some negligent act of-the carrier, resulting in the partial or total loss of said shipment. In the judgment rendered, we find No error.