Riff v. Yadkin Railroad

CONNOR, J. Defendant’s first assignment of error is based upon its exception to the overruling by the court of its motion, made before the trial began, to quash the deposition of Gabriel Engel taken before a notary public in New York. This deposition was duly taken in behalf of plaintiff on 18 September, 1923. Both parties were represented at said time and place. By consent, further proceedings were continued until Monday, 21 October, 1923. The deposition was signed by Gabriel Engel before the notary public on 1 October, 1923, neither party being present nor represented on said date. It does not appear that either party attended before the notary public on Monday, 21 October, 1923, or gave notice to the notary public or to the other party of any purpose or desire to proceed further in the matter of the deposition. The attorney for defendant stated upon the argument on appeal that defendant had no desire or purpose to cross-examine the witness further on 21 October, 1923, and had not intended to be present on said date. The deposition containing both the examination and cross-examination of Gabriel Engel was offered as evidence at the trial by the plaintiff and was read to the jury. There is no requirement in our statute that a deposition shall be signed by the witness. C. S., 1809. This Court has held that a deposition not signed by a witness may be read in evidence. Boggs v. Mining Co., 162 N. C., 393. It is good practice to have the deposition signed by the witness, for the purpose of identification, but the certificate of the commissioner or notary public is sufficient. The exception is not well taken and this assignment of error is not sustained. At the close of plaintiff’s evidence the defendant moved for judgment of nonsuit. Upon denial of this motion defendant excepted. Defendant offered no evidence, and requested the court to instruct the jury that there was no evidence that the goods alleged to have been lost were ever delivered to the railroad company, and that the jury should answer the issue “Nothing.” The court declined to give this instruction, and defendant excepted. The third and fourth assignments of error are based upon these exceptions. In their brief, filed in this Court, attorneys for defendant say that plaintiff relies upon the bill of lading as prima facie evidence of the receipt of the goods alleged to have been missing, by the Pennsylvania Railroad Company. This company in the bill of lading acknowledged *588 receipt by it, for transportation tq plaintiff, of two cases of knit goods, “contents and condition of contents of packages unknown.” Tbe bill of lading was not prima facie evidence of tbe quantity of tbe goods in tbe cases, but it was sucb evidence of tbe delivery to it by tbe Tale Knitting Mills of tbe. articles described therein, to wit, two cases of knit goods. A bill of lading is evidence of tbe facts recited therein, as against both tbe initial and the terminal carrier. 10 C. J., 371. This was a through bill of lading for tbe transportation of tbe goods from New York to Albemarle, N. C. Tbe liability of tbe terminal, or delivering carrier, is not affected by tbe Carmack Amendment, U. S. Comp. Stat., 8604A; Paper Box Co. v. R. R., 177 N. C., 351; Georgia F. & A. R. Co. v. Blish Milling Co., 241 U. S., 190, 60 L. Ed., 949. Defendant, as a common carrier, was liable to plaintiff for tbe actual contents of tbe two eases. Plaintiff assumed tbe burden of proving, by evidence, that tbe twenty-eight sweaters alleged to have been lost, were in tbe case when same was delivered to tbe initial carrier, and were missing when tbe case was delivered to plaintiff by tbe defendant. Tbe testimony of tbe shipping clerk of Yale Knitting Mills, and of witnesses offered by plaintiff as to tbe condition of tbe straps on tbe case, from which it was alleged that tbe sweaters bad been taken, and of tbe cartons therein when tbe same was opened by plaintiff at bis store in Albemarle,. N. C., was competent as evidence, and was properly submitted to tbe jury. There was competent evidence both as to tbe number of sweaters missing and as to their value. “Tbe through bill of lading and tbe receipt for tbe through freight by defendant are evidence of tbe joint contract. Mills v. R. R., 119 N. C., 693.” Paper Box Co. v. R. R., supra. “Where the question is one merely of shortage in tbe number of packages in an admitted shipment, tbe representation of a bill of lading, without any qualifications, is conclusive on tbe carrier as between tbe carrier and a consignee or transferee of a bill of lading who has incurred loss or liability in reliance on tbe correctness of tbe representation.” 4 R. C. L., 27. But see Williams v. R. R., 93 N. C., 42, where it is held that tbe carrier is not bound unless tbe goods are actually received for shipment, and that tbe carrier is not estopped from showing by parol that no goods were in fact received. Bank v. R. R., 175 N. C., 415. Where there is a general description of packages received for shipment, qualified by tbe statement in tbe bill of lading that tbe contents of tbe packages are unknown, and tbe contents are not subject to ordinary inspection, and there is an allegation of shortage in tbe number of articles in tbe packages at delivery,-tbe bill of lading, by reason of the qualification is not sufficient alone as evidence to sustain tbe allega *589 tion of shortage; it is, however, competent as evidence. The carrier is liable for the actual contents of the package, and this liability is not affected by the statement in the bill of lading that such contents are unknown. We have examined the other assignments of error. They are based upon exceptions to evidence and to instructions of the court to the jury» They are not sustained and the judgment is affirmed. We find No error.