Rollins v. Seaboard Air Line Railway

Hoke, J., after stating the case: We find nothing in the record or case on appeal which gives the defendant just ground for complaint. It was chiefly urged for reversible error that the Judge below should have instructed the jury that, if they believed the testimony, the plaintiff was not the “party aggrieved,” iinder the principle established in the ease of Stone v. Railroad. 144 N. C., 220. But the facts do not brine the *156 present case witbin tbe principle of that decision. In that case the Court properly held that, “when goods are delivered to a common carrier for transportation, and bill of lading issued, the title, in the absence'of any direction or agreement to the contrary, rests in the consignee, who is alone entitled to sue as the party aggrieved, under the statute.” And, applying the principle, the Court was of opinion that there was no testimony which tended to withdraw the case from the general ■ principle. In our case, however, the undisputed testimony was to the effect that, at the time of the shipment, plaintiff had made no sale of the wood, but the same was shipped to he sold for the benefit of the plaintiff, the consignor, and that he alone had the legal right to demand that the transportation he promptly made, as required by law and the terms of the contract. This brings the present case clearly within the principle declared in the opinion of Summers v. Railroad, 138 N. C., 295. In that decision the Court said: “In giving the penalty to the party aggrieved, the statute simply designates the person who shall have a right to sue, and restricts it to him who, by contract, has acquired the right to demand that the service be rendered. The party aggrieved, in statutes of this character, is the one whose legal right is denied, and the penalty is enforcible independent of pecuniary injury. Switzer v. Rodman, 48 Mo., 197; Qualls v. Sayles, 18 Tex. Civ. App., 400; Grocery Co. v. Railway, supra. Ordinarily, in case of a shipment of goods by a railway to a person who has ordered them, on delivery to the railroad the company receives them as the agent of the vendee or consignee, and such person would be the aggrieved-party by delay in forwarding. But in this case, by the terms of the agreement between the plaintiff and Ward & Son, the plaintiff was not to get credit for the returned goods till they were received by Ward & Son. It made no difference to this firm whether the goods were returned or not; they had their account against the plaintiff, and a fair interpretation of the agreement between the parties *157 is that no credit was to be given till tbe goods came to band. Until this occurred, tbe loss of tbe goods would have been tbe loss of tbe plaintiff, and be alone was interested in urging tbe shipment.” This authority is controlling and decides tbe point against defendant’s position. It was objected, further, that tlje Court should have held that there was no testimony to l?e considered by tbe jury that there bad been unreasonable delay in tbe shipment, and this for tbe reason that no witness bad stated in express terms what was tbe ordinary time required for a freight train between Merry 'Oaks and Ealeigb. Tbe objection is hardly open to defendant on this record, for all tbe testimony was to tbe effect that tbe delay complained of arose and existed all at tbe point of shipment — 'Merry Oaks; but, considering that tbe exception was properly presented, we think that there was testimony sufficient to carry tbe case to tbe jury. Tbe time of delay was shown, and it was also found that Merry Oaks, tbe point of shipment, was a regular station on the main line of tbe Seaboard Air Line Eailway, leading directly to Ea-leigb, tbe point of destination, and only twenty-five miles distant; and, with facts and conditions so simple and circumscribed, tbe jury might well be permitted, from their common observation and experience, to consider and determine tbe question of ordinary time between tbe two points, and, in tbe absence of explanation, fix tbe amount of wrongful delay on tbe principle established in Wright v. Railway, 127 N. C., 225, and Deans v. Railway, 107 N. C., 693. Exception was also made that tbe Court permitted tbe plaintiff to testify that be told defendant’s agent, a few days after the bill of lading was given, that be was shipping tbe wood to be sold on account, and that plaintiff could get no money till tbe wood was sold. Tbe evidence was introduced on the third and fourth issues, as to whether tbe defendant was notified that plaintiff was tbe “party aggrieved”; but we do not think that tbe issues themselves were material to tbe *158 controversy, or that tbe testimony was in any way relevant to tbe inquiry. It should always be required, for a lawful recovery, on a statute having this wording, that plaintiff should establish that he is the party aggrieved, for, as said by Mr. Justice Connor, in Stone's case, supra, “It is manifest that the statute does not contemplate that two recoveries should be recovered for the same breach of duty.” But when this is done, and defendant is thereby protected from responsibility, except to the rightful claimant' it is of no importance and bears in no way on the justice of plaintiff’s demand or of defendant’s obligation, whether defendant knew who was the party aggrieved, either at the inception of the matter or at any other time. The exception noted on the trial, that the statute was unconstitutional in denying to defendant the equal protection of the law, was not insisted upon here. The Court, in several decisions, has held that the statute is valid, and the objection cannot be sustained. Walker v. Railway, 131 N. C., 163; Slone's case, supra. There is no error, and the judgment below is affirmed. No Error.