
    J. S. HOWELL et al. v. SEABOARD AIR LINE RAILWAY COMPANY.
    (Filed 10 October, 1923.)
    1. Carriers — Railroads — Acceptance of Freight — Fires—Presumptions— Damages.
    Where the carrier accepts goods offered to it for immediate shipment, it is presumed that its acceptance was that of a common carrier, and not as a warehouseman; and where the carrier has so negligently delayed the shipment that it was destroyed in the burning of its warehouse, it is responsible to the consignor in damages.
    2. Same — Evidence—Interstate Commerce Commission — Burden of Proof.
    Where the evidence is conflicting as to whether the delay was caused by the shipper’s instruction for prepayment upon the carrier’s later calling at his place of business, according to local custom, and collecting freight, this does not affect the carrier’s liability upon the facts of this case, nor does' the regulation of the Interstate Commerce Commission requiring prepayment when the shipment is so forwarded, it being incumbent upon the carrier to refuse the consignment or forward the same, charges collect, with the burden on it to establish this defense.
    Appeal by defendant from Cranmer, J., at February Term, 1923, of FRANKLIN.
    Tbe plaintiffs delivered to the defendant at Louisburg, N. C., 5 January, 1922, a package of harness packed, addressed and in all respects ready for shipment. The bill of lading was immediately filled in, signed by the shipper and the agent of the carrier company. The agent of the carrier called the shipper over the telephone and asked if the harness was to be prepaid. He was told yes. The testimony of the witness for the plaintiff is that the defendant’s agent said that he would call and get the money at plaintiff’s office and that this was their customary way of dealing. A witness for the defendant testified that the shipper replied that he would call at the office of the defendant and pay the freight. The inquiry was for the purpose of ascertaining whether the goods were to be shipped prepaid or collect.
    On 14 January the warehouse of the defendant company at Louis-burg was destroyed by fire, including this shipment. -The issues submitted to the jury were: “Is the defendant indebted to the plaintiff? If so, how much”; to which they responded, “Yes; $320.88.” The freight was never paid and the evidence is that the bill of lading made out the day the shipment was brought to the station was put in a pigeon-hole in the desk but was not delivered until after the fire.
    At the conclusion of the evidence the defendant moved for a judgment of nonsuit which was overruled, and defendant excepted. Judgment upon the verdict in favor of the plaintiff. Appeal by defendant.
    
      
      W. H. Yarborough and S. A. Newell for plaintiff.
    
    
      Ben T. Holden and Murray Allen for defendant.
    
   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 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-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 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.  