#### D. L. NEWMAN v. SEABOARD AIR LINE RAILWAY COMPANY.

(Filed 8 October, 1924.)

1. Carriers — Railroads—Negligence—Rates—Classification—Bills of Lading — Contracts.

Where a railroad company, with the knowledge of its agent for the purpose, knowingly accepted leaf tobacco arranged on sticks along with a shipment of household goods, and issued a bill of lading therefor as a shipment of household goods at a lower freight rate than the classification on leaf tobacco: Held, a bill of lading is not an essential to a valid shipment and the liability of the carrier may attach on a shipment by parol; and the carrier was responsible in damages to the tobacco caused by its reloading and shipment en route on a leaky car which caused damage to the tobacco.

2. Same — Waiver—Interstate Commerce Commission.

Where the railroad agent knowingly receives a carload shipment of household goods and leaf tobacco from the consignor, and issues a bill of lading for household goods at a lower classification rate: Held, the provision in the bill of lading, approved by the Interstate Commerce Commission, requiring that the tobacco be shipped in a certain manner of packing, was inserted for the benefit of the carrier, which was waived by the carrier’s agent, and was properly deducted from the amount of the consignor’s damages in his action, caused to the tobacco by its negligence, there being no element of fraud on the plaintiff’s part. And the consignor being in no willful default, the only penalty to be- enforced will be the difference between the freight rate charged and that fixed by law for the classification, and where this has been properly allowed for in the verdict of the jury, no reversible error will appear on appeal.

Civil action, tried before Lyon, J., and a jury, at May Special Term, 1924, of Yance.

Tbe action is to recover damages to goods and tobacco skipped by plaintiff witk defendant as common carrier under contract from Brick-*342stone, Ga., to Henderson, N. C., in November, 1920. Tbe evidence of plaintiff pertinent to tbe questions presented is as follows:

“D. L. Newman, tbe plaintiff, being duly sworn, testified as follows:

“I live in Henderson now and bave lived bere since tbe fall of 1920. I moved bere in tbe fall of 1920 from Brickstone, Ga. There was no agent at Brickstone, Ga., so I went to tbe agent at Jones, Ga., and told him I wanted to skip to North Carolina my farming implements, potatoes, tobacco, household goods, mules and wagons. I told him that I was trying to sell my mules and wagon in Georgia, but if I could not sell them I would want a car to ship them bere. Tbe agent gave me rates both ways, with and without tbe mules. I sold tbe mules and wagons, so I loaded household goods, tobacco, potatoes, farming implements and tbe like in this car. At Brickstone tbe local train goes down one way one day and comes back tbe next. I flagged tbe train but tbe conductor did not see me, and I could not get him to bave me tbe bill of lading. I went to Jones, Ga., a few miles away, and tbe agent gave me a bill of lading. He did not ask me what was in tbe car, but asked me was it loaded, and I told him yes, and that I bad put tbe seal on tbe car. He wrote tbe bill of lading for carload of household furnishings, and I thought it was all right until I received tbe goods. Tbe agent bad given me two rates, and be gave me tbe lowest rate on tbe car because I bad sold tbe mules and tbey were not shipped in tbe car. Tbe agent lived at Jones, Ga.

“I told tbe agent at Jones Station I was going to put tobacco in tbe car. I filed a claim for 1,710 pounds of tobacco. I packed tbe tobacco in tbe car myself. I filed a claim for furniture amounting to $42.75. Tbe railroad company never bas offered to pay my claim for damage to tbe furniture.

“When my goods arrived in Henderson, it was not in tbe same car that I bad shipped it in. My brother told me tbe stuff bad come, and I told him be was mistaken because tbe number on tbe car was not tbe number called for in my bill of lading. I found that it was my goods, and there was a place broken out of tbe door of tbe car about six inches wide. I looked in tbe car and saw there was some tobacco tumbled in. I came to tbe agent bere and be said it was my stuff. It was in such a mixed up condition I called Mr. Smith before I moved a thing, and be went up and looked at tbe car, and said to go ahead and unload it. Mr. Smith was a representative of tbe railroad bere in Henderson. I came back and saw Captain Elmore. He looked at tbe bill of lading, and said it did nof call for any tobacco, and said that would bave to come through tbe warehouse and be weighed. I told him I was going to send tbe tobacco to tbe High Price Warehouse, and if be said so I would unload it and carry it to tbe High Price Warehouse.

*343“There came a rain while the car was on the way, and it blew in the car and wet the tobacco all through. The car I originally loaded the goods in broke down, and they unloaded every bit of my stuff and put it in this car that had the door broken. They did not pack the goods anything like I had it packed.

“The tobacco was not at all in the shape in which I had packed it. I had put some bags under the tobacco, and covered it up good like we do tobacco on the market here. The tobacco was already stripped and hung on sticks like we bring it to market here. When they reloaded the car they put the plows and other things in first and put the tobacco in last, just threw it in.

“I'did not weigh the tobacco before it left Georgia. The 1,710 pounds is just what I carried to the High Price Warehouse. I think the tobacco was damaged 12 or 15 cents per ^ pound. I had been raising tobacco ever since I left home. I went to Georgia to raise tobacco. I showed the tobacco to Mr. W. M. Ellis. He had the tobacco graded, and put it on the warehouse floor and tried to sell it for me. I say positively that at the time I went to the agent at Jones, Ga., in regard to this shipment, I told him I was going to load tobacco in the car.

“I say the man I lived with in Georgia shipped his part of this tobacco to Danville, Va., and it brought 18 cents a pound. There was no tobacco market at Brickstone at all. The year before I shipped tobacco to Henderson and sold with Mr. Taylor. I loaded household goods, tobacco, etc., in the ear, or had it done. The railroad agent had nothing to do with the loading of the car. I sealed the car. The tobacco lay at the warehouse for nearly a year, and then I sold it to my brother for one cent a pound for manure.”

“W. M. Ellis, witness for plaintiff, being duly sworn, testified as follows:

“I remember the tobacco that Mr. Newman shipped to himself here in Henderson sometime in 1920. I examined the tobacco that came in the car. I have had considerable experience with tobacco — have been raising it all my life, and have been in the warehouse business for five or six years. We were unable to sell it for anything. We graded it out and put it on the warehouse floor, and could not get any bid at all. I estimate that it would have averaged from fifteen to twenty cents a pound. The tobacco was graded in different lots like we usually grade it here. This particular tobacco belonging to Mr. Newman had been graded, and tied up nicely, just like we do the tobacco here, and had been hung on sticks like we fix it here for market. As to the condition of the tobacco, it was molded through and through, practically ruined. I cannot undertake to say whether that occurred while with the railroad or in some other way.”

*344I. D. Smith, witness for plaintiff, being duly sworn, testified as follows:

“I am working for tbe Seaboard Air Line Railway Company. I remember seeing tbe shipment of goods in question. I saw tbe goods when they arrived and before they were unloaded. I saw tbe tobacco— it was not in a pile. Tbe first thing I saw in tbe car was tbe tobacco. It was not in a pile or bulk, but scattered over tbe car. I could not ;say whether any of tbe furniture was broken. I remember seeing what was in tbe car — a lot of farming tools and household goods and tbe tobacco. It was a general mixture, and about tbe only thing I noticed was tbe tobacco that I remember. Tbe tobacco was on sticks, tied in bundles and put on sticks. Tbe tobacco was not packed down in a bulk ■nor crated when I saw it. I have nothing to do with tbe classification or tariff. I handle tbe claims.”

Plaintiff also introduced a bill of lading of defendant company of date 18 November, 1920 for one carload of household goods, 12,000 pounds. Relative value 10 per cent. Consigned to plaintiff at Henderson, N. C. Freight prepaid, $111.80.

-Defendant offers classification for tobacco and household goods as follows, and it being agreed that it was tbe classification in force at tbe time and filed with tbe Interstate Commerce Commission:

“Consolidated Freight Classification No. 1, page 391, item 21, leaf tobacco must be in bags, bundles or crates less than carload, and bags, bales, bundles or crates and in barrels, boxes or hogsheads in mixed carloads.

“Classification for household goods, page 222, item 14.- — Household goods, value declared in writing by the writer; agreed upon in writing as to the released value of the property in accordance with the following: See notes 1, 2 and 3. Note No.' 2. — Ratings on household goods apply only on second-hand furniture or furnishings for residences, with not to exceed one piano, but would not apply on articles the acceptance of which is prohibited by Rule 3, nor on any goods shipped for sale or speculation.”

At close of plaintiff’s evidence and of entire evidence there was motion for judgment of nonsuit. Motion overruled and exception noted. On denial of liability, issues were submitted .and verdict rendered, set forth in the judgment which is as follows :

“This cause coming on to be heard before the undersigned Judge Superior Court at the Special May Term for Yance County, North Carolina, the following issues being found as set opposite, to wit:

“Was the plaintiff damaged by the negligence of the defendant? Answer: Yes.

*345“What damage, if any, was done to tbe furniture? Answer: $30.00.

“What damage, if any, was done to tbe tobacco ? Answer: $205.00.

“It is therefore, on motion of J. P. Zollicoffer, attorney, ordered, adjudged and decreed tbat tbe plaintiff in tbis action recover from tbe defendant tbe sum of two hundred and thirty-five dollars, together with costs of tbis action, to be taxed by tbe court.

“C. C. LyoN, Judge Presiding.”

Defendant appealed, assigning errors.

J. P. Zollicoffer for plaintiff.

J. H. Bridgers and Murray Allen for defendant.

Hoke, C. J.

It appears from tbe evidence tbat plaintiff’s tobacco, shipped with defendant as common carrier, was practically ruined in tbe course of shipment by negligence of defendant company. Not only is tbis tbe permissible inference from tbe respective conditions of tbe tobacco when received by tbe company at tbe point of shipment and its delivery at tbe place of destination, but there is direct evidence tbat same, put in a defective car originally, was transferred by tbe company in tbe course of shipment and placed in a car having a bole in tbe door, by reason of which it was rained upon and thereby so injured as to Tender it practically valueless. These positions have been established by tbe verdict and damages assessed and judgment rendered for tbe injury, less tbe additional freight for a tobacco shipment, conceded to be $25.00. And on tbe record we find no valid reason for disturbing tbe results of tbe trial.

There is nothing to contradict tbe plaintiff’s statement tbat tbe agent' who made out tbe bill of lading was informed tbat tbe tobacco was to be included in tbe shipment, and on tbe facts of tbis record, if be chose to describe tbe entire shipment as household goods, such an act should not be allowed to injuriously affect tbe plaintiff except to render him liable for tbe additional freight due for tbe actual character of tbe shipment, and tbis, under bis Honor’s charge, has been accounted for to defendant.

Even if tbe term household goods could not be extended to include tbe tobacco, it is fully recognized tbat a bill of lading is not an essential to a valid shipment and tbe liability of a common carrier may attach on a shipment by parol. Bryan v. R. R., 174 N. C., p. 177; Davis v. R. R., 172 N. C., p. 209; Smith v. R. R., 163 N. C., p. 143; Porter v. R. R., 132 N. C., p. 71; Berry v. R. R., 122 N. C., p. 1002.

It is insisted further for defendant tbat its motion for nonsuit should have been allowed because tbe shipment is in violation of tbe classifications introduced in evidence and requiring tbat leaf tobacco be shipped *346in bags, bales, bundles, etc. It is not at all clear tbat tbis tobacco when shipped was not in the shape referred to. The witness, I. D. Smith, an employee of the company testified that the tobacco was tied in bundles and put on sticks. But if the contrary be conceded, we do not understand that this classification is inhibitive in its terms or purpose or that it is to be regarded as an essential to a valid shipment. So far as discoverable from this record, it seems to be a provision inserted for the protection of the company and not directly bearing on the administrative regulations established primarily to prevent discrimination among shippers, and this being true, it could be waived by the company and should be considered waived on the facts as presented. And even if otherwise considered, the shipper being in no wilful default the only penalty enforceable would be the collection of the additional freight required by the schedules, and this, as we have seen, has been allowed for- in the verdict.

There is nothing in the disposition of the case that in any way cpn-flicts with our decision in Morris v. Express Co., 183 N. C., p. 144, cited for appellant. That was a case to some extent involving the rights, of a shipper and carrier in reference to the contents of a closed package, and representations concerning it permitting the inference of fraud. But no such question is presented here where it is not denied that the company and its agent were fully informed of what the shipper intended to place in the ear.

Ve find no error, and.judgment for plaintiff is affirmed.

No error.