#### S. P. McCONNELL v. NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY et al.

(Filed 12 November, 1913.)

1.Carriers of Goods — Liability—Insurer.

Tlie liability of a common carrier of goods is that of an insurer, and where there is no valid exemption in the contract of carriage, it extends to every loss or damage, however occasioned, unless by the act of God or the public enemy, or some cause or accident without any fault or negligence on the part of the carrier.

2. Carriers of Goods — Parol Contract.

A parol contract made with the carrier for the transportation of goods is as binding, when established, as a written one.

3. Same — ■ Bills of Lading — Negligence — Restrictive Liability — Waiver.

Where there is evidence tending to show that a common carrier made a parol contract to transport goods for the shipper, without restricting its liability, and thereafter by mistake the shipper signed a bill of lading purporting to restrict the amount of recovery for damages in consideration of the rate made, and the jury have found under correct instructions from the court that the parol agreement had been made, and there was no waiver thereof by the shipper, the carrier’s liability for damages to the shipment caused by its negligence is ascertained under the parol contract; and the question as to the validity of stipulations in bills of lading, used in interstate commerce, restricting the recovery of damages to an appraised value at the initial point where the contract was made does not arise. '

4. Carriers of Goods — Connecting Lines — Negligence — Interstate Commerce — Contract for Delivery.

Where a carrier has unconditionally contracted to transport and deliver goods beyond its own line to its destination, it is as liable for the damages caused to the shipment by the negligence of its connecting lines as for negligence occurring on its own line of road; and where the shipment is interstate, the Carmack amendment to the Hepburn Act, making the initial line liable for the negligence of its connecting lines and permitting it a recovery against them, need not, therefore, be considered. •

Appeal by defendants from Adams, J., at January Term, 1913, of Moore.

*505This action was brought to recover damages for injury to a car-load of household goods, shipped by plaintiff from Osca-wana, N. Y., to Carthage, N. C. The goods were shipped under an oral contract for their transportation from the beginning to the end of their journey ¿nd their delivery at the terminal point to the consignee. The goods were damaged during the transit, as the jury find, by the negligence of the defendant in transferring them from its car, in which they had been originally and carefully packed, to a car of a connecting line, and also by the careless manner of stowing or arranging them in that car. Defendant alleges that they were shipped under a written contract of carriage, with a specified valuation clause inserted in consideration of' a reduced charge or toll for the carriage, it being $10 per 100 pounds, and other stipulations restricting its liability for loss from negligence to its own line or its portion of the through route, and also in other respects; but they need not be dwelt upon, as the decision of the case will turn upon other matters. After the goods had arrived at their destination, plaintiff signed a bill of lading and placed it among the claim papers, as h.e said, by inadvertence, not meaning thereby to change the contract of shipment, which contained no clause of limitation as to liability or value in case of loss, and that this paper was not signed by him until after the goods arrived in Carthage. That he did not know how this bill got into his files, and he signed it not knowing what it was and by accident or mistake in making up his claim papers.

The following is the verdict of the jury:

1. Did the plaintiff deliver to the defendant for transportation from Oscawana, N. Y., to Carthage, N. C., a car-load of furniture and household goods, as alleged in the complaint? Answer: Yes (by consent).

2. If so, were said furniture and household goods damaged by the negligence of the defendant, as alleged in the complaint ? Answer: Yes.

3. Did plaintiff and defendant make a written contract for the transportation of said property, as alleged in the answer? Answer: No.

*5064. What damage, if any, is tbe plaintiff entitled to recover? Answer: $2,671, with interest from September,' 1911.”

Judgment was entered upon tbe verdict, and defendant appealed.

U. L. Spence for plaintiff.

W. H. Neal for defendant.

Walker, J.,

after stating tbe case: Tbe decision of tbis appeal turns upon tbe question as to wbat was tbe contract of- tbe parties. If tbe defendant undertook, for a consideration, to carry tbe goods from Oscawana, N. Y., to Carthage, N. C., and safely deliver them there, without restriction and with no release of its common-law liability, tbe defendant is undoubtedly answerable to tbe plaintiff for actual damage to tbe goods. His liability is that of an insurer, with certain well defined exceptions.

Hutchison on Carriers (3 Ed.), sec. 265 (sec. 170a); says: “Tbe liability of tbe common carrier by law is, as has been seen, an unusual and extraordinary one, based upon considerations of public policy which have survived tbe wonderful change in tbe circumstances under which they first arose. By that law tbe common carrier is regarded as a practical insurer of tbe goods against all losses of whatever kind, with tbe exception of (1) those arising from what is known as the act of God, and (2) those caused by tbe public enemy; to which in modem times have been added (3) those arising from tbe act of tbe public authority, (4) those arising from tbe act of tbe shipper, and (5) those arising from tbe inherent nature of tbe goods.” Currie v. R. R., 156 N. C., 432.

But there was evidence of negligence on tbe part of tbe defendant, which was properly submitted to tbe jury, and they found that tbe goods bad been damaged by its negligence; so-that tbe question of its common-law liability is not important.

Tbe serious and vital question arose upon tbe issue as to damages, plaintiff contending for full damages, and tbe defendant for an assessment according to tbe terms of tbe bill of lading. Tbe court instructed the jury to find whether tbe goods were shipped under tbe unlimited oral contract or under tbe contract *507as evidenced, by tbe bill- of lading, and in a charge wbicb was full and explicit upon this point, and exceedingly clear and forceful, and, we may add, very fair to -tbe defendant and as favorable as it was .entitled to ask or could expect, tbe court explained tbe issue tbus squarely made by tbe parties, and tbe jury bave found that tbe contract was as stated by tbe plaintiff, oral and unrestricted, and was not tbe one contained in tbe bill' of lading.

It was conceded by learned counsel for tbe defendant (wbo presented its side of tbe case witb bis usual ability and precision, confining bimself to tbe vital issue of tbe case) that no particular form or solemnity of execution is required for a contract of tbe carrier to transport goods. It may be by parol, or it may be in writing. Railway Co. v. Patrick, 144 Fed. Rep., 632; Railway Co. v. Jarey, 111 U. S., 584 (28 L. Ed., 527); Hutchison on Carriers (3 Ed.), sec. 411 (242); Berry v. R. R., 122 N. C., 1003. In Railway v. Patrick, supra, tbe Court says: “It (tbe contract of shipment) may be orally made, and when so made, in tbe absence of fraud or imposition, it is as obligatory upon both tbe shipper and carriér as a written one. Tbe difficulty generally arises in establishing its terms by parol, but, when once established, it determines tbe rights and obligations of tbe parties, except as affected by statutory law, as conclusively as if it bad been in writing and in tbe accepted form of a negotiable bill of lading.”

As tbe jury bave found that tbe parties contracted orally, and not according to tbe usual terms of bills of lading issued by tbe defendant, wbicb limited its liability and presented a rule for assessing tbe damages in case of a loss, we are not called upon to comment upon tbe course of decision in this Court as t'o tbe validity of stipulations in bills of lading, used in interstate commerce, restricting tbe recovery of damages to an appraised value at tbe initial point where tbe contract was made, nor need we discuss tbe effect of recent decisions in tbe Supreme Court of tbe United States upon that question (Adams Express Co. v. Croninger, 226 U. S., 491) w.biob were mentioned in tbe charge of tbe court. We simply determine tbe rights of tbe parties according to tbe oral contract, which tbe jury bave found to be *508the true one, and not to have been altered in any way or waived by what afterwards transpired. In Smith v. R. R., ante, 143, we have dealt with the question involved in this case, though not upon the same facts. That case resembled more in its main features Railway v. Patrick, supra, where the Court of Appeals of the Indian Territory (affirmed by the higher court) said: “But the paper issued and denominated a bill of lading in the case at bar was never signed by the carrier, and by reason of that fact it was not a bill of lading, and consequ'ently the pre-' tended limitation of liability stated therein was not binding on the appellee, and none of its provisions was binding on either the carrier or the shipper. Therefore there is no evidence that any verbal or written contract was made between the parties limiting the common-law liability of the carrier.” But the principle of the cases is the same.

It having been determined that the goods were shipped under the oral contract to transport and deliver, without any restrictive features, the defendant is liable for the injury to the goods, according to the principles of the common law, aS an insurer. Mitchell v. R. R., 124 N. C., 236; Hinkle v. R. R., 126 N. C., 932. It was said in Mitchell’s case, supra:. “It is the duty of a common carrier, irrespective of cQntract, but subject to reasonable regulations, to accept, safely carry, and deliver all goods intrusted to it. If the goods are lost, it must show what became of them, and if they are damaged, it must prove affirmatively that they were damaged in some way that would relieve it from responsibility. The plaintiff has a prima facie case when he shows the receipt of the goods by the carrier and their nondelivery or delivery in a damaged condition. Any further defense is in the nature of confession and avoidance. If the defendant pleads exemption by virtue of - a special contract, it must prove the contract and show that the loss or damage comes within some one of the exceptions. It must appear to the court as matter of law that the contract is reasonable in all of its essential features, and that the exceptions are not contrary to public policy. All such exceptions, being in derogation of common law, should be strictly construed.” Currie v. R. R., 156 N. C., 432.

*509Without deciding the question, it may well be doubted whether an agreement to waive or discharge the original contract by parol and substitute another for it, which is made after the loss had accrued or after breach, would be binding on the plaintiff, where not founded upon a new consideration. Hutchison on Carriers (3 Ed.), sec. 412 (243); The Delaware v. Oregon Iron Co., 14 Wall. (U. S.), at 603 (20 L. Ed., 783), and cases cited; Emerson v. Slater, 22 How., 28 (16 L. Ed.), 360.

In the absence of any exemption in the contract from its common-law liability, we must hold that defendant was an insurer, who is liable in all events and for every loss or damage, however occasioned, unless it happened by the act of God .or the public enemy, or by some other cause or accident, without any fault or negligence on the part of the carrier, and expressly excepted in its contract, whether oral, or written in the form of a bill of lading. The Delaware v. Oregon Iron Co., 14 Wall., at p. 597. This is said by Justice Clifford, in that ease, to be the best description of a carrier’s obligation.

Something was said in the argument as to the Carmack amendment to the Hepburn Act of 1909 (34 Stat. at Large, 584, ch. 3591, U. S. Comp. Stat., Supp. 1909, p. 1149), providing that wh.ere goods are received for shipment in interstate- commerce the initial carrier shall be liable for damages caused by itself or a connecting carrier, and making void any contract of exemption against such liability, but allowing the initial carrier to recover over against the connecting carrier, on whose line the loss or damage occurred, 'the amount thereof. We need not decide whether that act is applicable to the facts of this case, as defendant agreed by its oral contract to carry the goods and deliver them at Carthage, choosing its own intermediate agents or connecting lines for the purpose. At common law, carriers are not bound to carry except on their own lines; but they may by special contract subject themselves to liability over the whole course of transit. R. R. v. Pratt, 22 Wall., 123 (23 L. Ed., 827); R. R. v. McCarthy, 96 U. S., 258; 3 Enc. of U. S. Supreme Ct. Reports, p. 610 and notes. They thus extend their route with the help of others, and their position is the same as to liability for negligence as if the course and means of trans*510portation employed were all their own. R. R. v. R. R., 110 U. S., 667. In this ease, though, the jury have found, when the verdict is interpreted in the light of the pleadings, evidence, and the charge of the court, that defendant’s own negligence caused the damage to the goods.

We have discovered no error in the trial or in the record.

No error.