Howell v. Seaboard Air Line Railway Co.

Claek, O. J. The motion for nonsuit was met by this charge of the court which, as it relates to the controversy in this case, was as follows: “I instruct you, gentlemen of the jury, that the delivery of the bill of lading is not necessary to make the carrier liable for goods sent to it for shipment. The delivery of goods to a common carrier raises the presumption that it received them as a common carrier, and the burden is upon the company to show that it received them only as a warehouseman and that the shipper either assented to that arrangement as, for instance, by request to hold the goods or was notified by the company that it held them for further orders.” There was no contest as to the value of the shipment. In Berry v. R. R., 122 N. C., 1002, which was almost identical with this case, the court charged the jury that where the shipper wrote the freight agent as follows: “Will you be kind enough to have these three pieces marked according to the address already tacked on, and forward as soon as possible to Newport, R. I. ? Will you mark them prepaid ? I will be at the depot tomorrow and get the bill of lading and pay the freight.” It was held that such letter was a direction for immediate shipment, and did not make the marking of the pieces as prepaid a condition precedent to the shipment. The delivery of a bill of lading is not necessary to make a carrier liable for such goods as are sent to it for shipment. When goods are delivered to a carrier for shipment, the presumption is that they are received for shipment and not for storage, and the burden is upon the company to show that it received the goods as a warehouseman and not as a carrier. This case quotes Wells v. R. R., 51 N. C., 47, that delivery of a bill oí lading is not necessary to fix liability upon the defendant. In the Wells case the Court said: “If the article is put on the company’s platform at the depot with the knowledge of the agent, that amounts to an acceptance, and it is not necessary that it should be entered on the way-bill or freight bill or any written memorandum made in order to make the company liable for it to the same extent as if it is actually put on the freight train.” Both this case and Berry’s case, cited above, have been cited and approved in a number of cases, including Smith v. R. R., 163 N. C., 145; McConnell v. R. R., 163 N. C., 507; Lyon v. R. R., 165 N. C., 147; Davis v. R. R., 172 N. C., 209; Aman v. R. R., 179 N. C., 313, and others. In Berry v. R. R., supra, after quoting the letter, the Court said: “This order was a direction for the immediate and earliest shipment of the goods. The request to mark them prepaid was not a condition preee- *241 dent to tbe shipment but a collateral request that as a favor to her they be so marked, as sbe would pay tbe agent tbe next day.” “No formal acceptance is necessary where tbe agent has knowledge of tbe delivery of tbe goods with tbe intention that they be shipped, and makes no objection thereto.” 6 Cyc., 413. Tbe defendant offered' no evidence that it received tbe goods as warehouseman rather than as carrier. Having received tbe goods, tbe burden was on tbe defendant to show that it did not receive them as a common carrier. Joyner, agent of tbe defendant company, admitted on cross-examination that it was tbe custom of tbe defendant to carry a charge account for freight with tbe plaintiff. Tbe evidence is much stronger than in Davis v. R. R., 172 N. C., 209, a very similar case, in which tbe plaintiff recovered and tbe Court found no error. Tbe appellant in bis brief complains for tbe first time of omissions in tbe charge of tbe court. There was no request for instructions and no exception whatever taken by tbe defendant that tbe court did not fully present its' contentions. Only exceptions taken at tbe trial or assigned in tbe case on appeal will be considered by this Court. Rawls v. R. R., 172 N. C., 211; Worley v. Logging Co., 157 N. C., 499. It is true that under tbe regulations of tbe Interstate Commerce Commission freight rates were required to be collected on a prepaid consignment before tbe shipment was forwarded, but tbe railroad agent accepted this. shipment to be forwarded, and before tbe freight was actually paid over to him tbe goods burned. Though tbe fire occurred before tbe goods left tbe station, they were by virtue of this agreement in possession of tbe goods as a carrier and not as a warehouseman. Under tbe regulations of tbe Interstate Commerce Commission, tbe goods should not be forwarded marked prepaid until tbe freight bad been actually received by tbe company. None tbe less, by tbe actual receipt of tbe goods for shipment, they were in possession of tbe defendant as a common carrier. Goods could be accepted for shipment either prepaid or collect. If tbe goods bad been marked “prepaid” when shipped, when in fact they were not, this would have been in violation of tbe regulations of tbe Interstate Commerce Commission. They were not shipped so marked nor was there notice that they were held for prepayment of freight. Though tbe shipper stated, when asked by defendant’s agent, that be wished them shipped prepaid, there is no evidence that they were held for lack of prepayment. They were in tbe bands of tbe defendant for shipment — that is, as a common carrier and not as a warehouseman, and it is responsible for tbe loss by its failure to ship. If it bad demanded prepayment and this bad not been made, then they would have been in tbe bands of tbe defendant simply as a warehouseman. . On *242 tbe contrary, it accepted tbe goods absolutely for shipment, and there is testimony that its agent stated that be would call for tbe freight charges according to its custom with tbe plaintiff, who testified that be thought tbe goods bad been shipped and that be stood ready to pay tbe defendant’s agent whenever be should call, according to bis promise. Tbe jury found that tbe delay in shipment was the neglect of tbe common carrier. No error.