Productive Tool Corp. v. Pilot Freight Carriers, Inc. , 33 N.C. App. 241 ( 1977 )

PARKER, Judge.

The record on appeal contains but one exception, being the exception to the signing and entering of the judgment, and it contains no assignment of error. Rule 10(a) of the North Carolina Rules of Appellate Procedure is as follows:

“Rule 10

Exceptions and Assignments of Error in Record on Appeal

(a) Function in Limiting Scope of Review. Except as otherwise provided in this Rule 10, the scope of review on appeal is confined to a consideration of those exceptions set out and made the basis of assignments of error in the record on appeal in accordance with this Rule 10. No exception not so set out may be made the basis of an assignment of error; and no exception so set out which is not made the basis of an assignment of error may be considered on appeal. Provided, that upon any appeal duly taken from a final judgment any party to the appeal may present for review, by properly raising them in his brief, the questions whether the judgment is supported by the verdict or by the findings of fact and conclusions of law, whether the court had jurisdiction of the subject matter, and whether a criminal charge is sufficient in law, notwithstanding the absence of exceptions or assignments of error in the record on appeal.”

There being no assignment of error in the record on appeal, the only question presented for our review by this appeal is the question, which was properly raised in appellant’s brief, whether the judgment is supported by the findings of fact and conclusions of law. We hold that it is.

A common carrier is liable for the loss of or damage to property accepted by it for carriage except for loss or damage due to an act of God, the public enemy, the fault of the shipper, or inherent defect in the goods shipped. Merchant v. Lassiter, 224 N.C. 343, 30 S.E. 2d 217 (1944). This rule applies to interstate as well as to intrastate shipments. Cigar Co. v. Garner, 229 N.C. 173, 47 S.E. 2d 854 (1948). In its brief, defendant does not challenge this rule nor does it question the court’s conclusion of law based on the facts found in this case that defendant was under a duty to deliver plaintiff’s machine in as good condition as it was when defendant accepted it for shipment. Additionally, defendant does not challenge the court’s conclusion that the machine was damaged in the course of transit while on the defendant’s truck. Thus, defendant does not question its initial liability as a common carrier for the damage to plaintiff’s property which occurred while it was being transported by the defendant.

Defendant’s sole contention is that, as a condition precedent to recovery, plaintiff was required to file its claim in writing with the defendant within nine months after delivery of the property, that plaintiff failed to do this, and that the court was in error in making its conclusion of law “that the plaintiff was under no duty to file any further notice of damage or claims without being notified by the defendant to do so.” The difficulty in defendant’s position is that, on this record, it has failed to establish its major premise, i.e., that plaintiff was required, as a condition precedent to recovery, to file its claim within nine months after delivery of the property.

The Interstate Commerce Act, in 49 U.S.C. § 20(11), provides that it is unlawful for any common carrier “to provide by rule, contract, regulation, or otherwise a shorter period for the filing of claims than nine months.” (Emphasis added.) [49 U.S.C. § 20(11) was made applicable to motor carriers by 49 U.S.C. § 319.] However, nothing in the Act makes it unlawful for a common carrier to provide a longer period than nine months for the filing of claims. In its answer defendant alleged that it accepted the machine from General Tool and Die Company in Columbia, South Carolina, pursuant to a bill of lading which was binding on the plaintiff as the consignee and that the bill of lading contained a provision making it a condition precedent to recovery that claims must be filed in writing within nine months after delivery of the property. These, however, were solely allegations. The court made no finding as to the contents of the bill of lading and, indeed, could not have done so since defendant failed to offer any evidence to show what provisions were contained in the bill of lading or even that any bill of lading was issued in connection with the shipment of the machine involved in this action.

In its brief, defendant cites a provision of the National Motor Freight Classifications, which defendant asserts was in effect and on file with the Interstate Commerce Commission, as establishing the requirement that plaintiff file its claim within nine months after delivery of the property. In the judgment appealed from, however, the court made no finding as to the contents of any such National Motor Freight Classification. The finding “that the defendant notified the plaintiff by letter in October of 1973 that the plaintiff’s claim for damages was denied on the grounds that the same was not filed within nine months from the date of loss as was required under the rules and regulations as promulgated by the Interstate Commerce Commission pursuant to the national motor freight carriers classification tariffs” amounted to no more than a finding as to the date when defendant notified plaintiff it was denying plaintiff’s claim and as to the grounds stated by defendant for doing so; it fell short of being a finding as to what provisions were actually contained in any classification or tariff filed with and approved by the Interstate Commerce Commission. 49 U.S.C. § 16(13) provides that “copies of schedules and classifications and tariffs” filed with the Interstate Commerce Commission, when certified by the secretary of the commission under the commission’s seal, “shall be received as prima facie evidence of what they purport to be for the purpose of investigation by the commission and in all judicial proceedings.” No such copy of the National Motor Freight Classifications upon which defendant relies was offered in evidence by the defendant. Even if defendant had offered a properly certified copy showing the nine months provision which defendant contends was in effect, the lack of any assignment of error in this record would prevent appellate review of the court’s failure to make a finding of fact with respect thereto. As previously noted, the only question presented for our review by the record on this appeal is whether the judgment appealed from is supported by the findings of fact and conclusions of law which were made. We hold that it is, and the judgment is

Affirmed.

Chief Judge Brock and Judge Arnold concur.