Star Furniture Co. v. Carolina & Northwestern Railway Co.

Stacy, C. J., after stating the case: It should be observed, at the outset, that we are not dealing with the merits of the controversy, but *639 with the sufficiency of the allegations of the complaint.

Ballinger v. Thomas, ante, 517. The case is here on demurrer, restricted to the two grounds specified and designated therein. C. S., 512.

The demurrer was properly overruled on the first ground, i. e., of an alleged misjoinder of parties. It is no “defect of parties” to join unnecessary parties.

Abbott v. Hancock, 123 N. C., 99 , 31 S. E., 368 ; C. S., 511. Furthermore, it is only when there is a misjoinder, both of parties and of causes of action, and a demurrer is interposed upon this ground, that the demurrer should be sustained and the action dismissed.

Bank v. Angelo, 193 N. C., 576 , 137 S. E., 705 ;

Roberts v. Mfg. Co., 181 N. C., 204 , 106 S. E., 664 .

The demurrer was properly overruled on the second ground also. It does not appear from the complaint that claim for loss must be filed by the consignee, or that such claim may not be filed by the consignor. It is provided by the “Carmack Amendment” to the Interstate Commerce Act (set out in full in Mann v. Transportation Co., 176 N. C., 107 ) that any common carrier, railroad or transportation company, receiving property for transportation in interstate commerce, “shall be liable to the lawful holder of said receipt or bill of lading, or to any party entitled to recover thereon,” for the full actual loss, damage or injury to such property caused by it or any connecting carrier when transported on a through bill of lading, etc. We are not called upon to decide, nor do we decide, upon the present record, whether, under a uniform bill of lading, notice by the consignor will suffice to support an action by the consignee. The complaint alleges that the Star Furniture Company made and presented a written claim against the defendant for the loss of said property, on a form furnished by the defendant for the purpose, and delivered same to the defendant at the point of origin of shipment “as required and provided in the bill of lading.” The bill of lading is not made a part of the complaint.

We are not permitted to look beyond the allegations of the complaint, or travel outside the scope of the demurrer, in dealing with the present appeal.

Brick Co. v. Gentry, 191 N. C., 636 , 132 S. E., 800 .

The question as to whether suit by the consignee, debated on brief, can be maintained, because not brought within the time limited in the contract, is not presented by the demurrer.

Affirmed.