Opinion
(Decided 21 March, 1899.)
Exclusive Privileges.
1. Exclusive privileges are inhibited by the Constitution, Art. I, sec. 7.
2. Warehousemen are liable, under the general law, for damages caused by their negligence.
3. The clause in the charter of the defendant company which reads as follows: "Provided, however, that said company shall not be held responsible for losses arising from the act of God, or of common enemies, nor for any loss or damage not provided for in its warehouse receipts or contract; and said company may make such stipulations in its warehouse receipts or contracts, as to loss or damage ensuing by fire or other cause, as it may deem necessary and proper," is in contravention of the Constitution.
PETITION to rehear this cause, decided at February Term, 1898, 122 N.C. 347.
C. M. Stedman and R. R. King for petitioner.
Bynum Bynum and A. M. Scales contra.
This is a petition on the part of the defendant to rehear and review the former opinion of this Court ( 122 N.C. 347). Upon this petition a rehearing has been ordered, but restricted to the constitutional question involved. And upon the rehearing, this question has been interestingly discussed on both sides, but there were no new developments in the case. Nor was there any phase or aspect of the case presented that had not been presented and considered on the former hearing. There was more elaboration in the argument, and some authorities (233) cited that were not cited on the former argument, but they were only cumulative and no stronger than those cited before.
It seems to us that the petition and the argument are predicated upon a misconception of the opinion of the Court. They seem to be based upon the idea that the Court had decided that it was unconstitutional for the Legislature to grant the defendant the right to contract against loss. If the Court had decided this to be the law, its decision would most undoubtedly be erroneous. But this is not the case — the opinion does not so decide. The defendant did not contract against loss, as will plainly appear by the receipt copied in the former opinion, which is admitted to contain the contract of the parties. Under this contract and the findings of the jury the defendant has been guilty of negligence and is liable to plaintiff in damages, if it is subject to the general law governing the liabilities of warehousemen.
But defendant contends that it is not liable to the same rule of damages that other warehousemen are; that while they are liable under the general law for the damages caused by their negligence, it is not only liable for damages when it specially contracts to be liable, whether the damage was caused by its negligence or not.
If this is not a special privilege, not enjoyed by other corporations or by individual citizens, and which could not be granted to them, we are incapable of understanding what would be.
It is exclusive, because it is a privilege; a thing that others are excluded from, and not entitled to, and not because it could not be granted to other corporations (if it were constitutional to do so), but because it is not done, and others are excluded from the benefit of this privilege. It was so held in Simonton v. Lanier, 71 N.C. 498; Station v. (234) R. R., 111 N.C. 278, cited in the former opinion of this Court. And as these cases seem to be founded upon sound public policy, we have no disposition to overrule them.
We do not see that we can add anything more to the argument contained in the former opinion, and will not discuss the matter further.
PETITION DISMISSED.
Cited: S. c., 126 N.C. 339.