Allen v. Cape Fear & Y.V. Ry. Co.

• Citation: 6 S.E. 105,100 N.C. 397
• Parties: ALLEN v. CAPE FEAR & Y. V. RY. Co.
• Decision Date: 09 April 1888
• Court: United States State Supreme Court of North Carolina

6 S.E. 105

100 N.C. 397

ALLEN v. CAPE FEAR & Y. V. RY. Co.

Supreme Court of North Carolina

April 9, 1888

Appeal from superior court, Cumberland county; WALTER CLARK, Judge.

Action by plaintiff, J. L. Allen, against defendant, the Cape Fear & Yadkin Valley Railway Company, for unjust discrimination and libel in publishing an order not to carry plaintiff's freight except when the freight charges are paid. Plaintiff appeals from judgment of dismissal on the pleadings.

An order by a railroad company to its agents as follows "You are instructed to ship no lumber or merchandise of any description to Mr. J. L. Allen * * * except when all freight and charges are paid,"--and a request to a connecting road to make a like order, does not constitute libel. It is a privileged communication, unless malicious.

W. A Guthrie, N.W. Ray, and T. H. Sutton, for appellant.

D. Rose and G. M. Rose, for appellee.

SMITH C.J.

The plaintiff sued out a summons against the defendant company on May 14, 1884, and, upon the return of service, set out his cause of action in the following complaint filed: "(1) The above-named plaintiff, complaining, says that the above-named defendant, the Cape Fear & Yadkin Valley Railway Company, is, and was at the time hereinafter mentioned and referred to, a corporation duly created and existing under and by virtue of the laws of North Carolina, and, as such was acting as a common carrier in the transportation of passengers and freight to and from the town of Fayetteville in said county of Cumberland, and exercising and enjoying all the rights, powers, and privileges appertaining to railway corporations as common carriers and warehousemen. (2) That the defendant James S. Morrison was, at the time hereinafter mentioned and referred to, in the employment of said corporation defendant as engineer and superintendent of said railway. (3) That the plaintiff, J. L. Allen, at the time hereinafter mentioned and referred to, was engaged in business in said town of Fayetteville, as a merchant, and dealer in furniture and other merchandise, and also as a manufacturer of furniture, and sash, blinds, doors, and other building material. (4) That, as such merchant, dealer, and manufacturer, the plaintiff was a patron of said railway, and was accustomed to use the same in the transportation of goods and materials to his said place of business and manufactory, and also in the shipping of furniture, goods, sash, blinds, etc., from his store and factory in said town of Fayetteville, using the said road as merchants, dealers, and shippers of all kinds were and are accustomed to do. (5) That on or about the 6th of May, 1884, the defendant James S. Morrison caused to be issued from his office an order as follows, viz.: ' MAY 6, 1884. To Agents: From this date you are instructed to ship no lumber or merchandise of any description to Mr. J. L. Allen, of Fayetteville, N. C., except when all freight and charges are paid. J. S. MORRISON, Engineer and Superintendent, '--and caused the same to be sent to all the agents on the line of said railway, and also requested Maj. Winder, who is the superintendent of the Raleigh & Augusta Air Line Railroad, to give the same instructions to agents on his road. The said R. & A. A. L. Railroad was at that time the only railroad that connected with the C. F. & Y. V. Railway, and delivered freight to, or received freight from, the C. F. & Y. V. Railway. (6) That said C. F. & Y. V. Railway Company was accustomed to receive and transport goods, merchandise, and freight of all kinds, for all shippers, without requiring prepayment of freight and charges, and up to said May 6, 1884, the plaintiff had been treated as all other customers in that respect; but the aforesaid order was a discrimination against the plaintiff specially, and was not made to apply to the other customers or patrons of said corporation generally. (7) That the said corporation defendant, upon its attention being called specially to said order by the plaintiff, refused to change or modify it, and said corporation has enforced said order against the plaintiff. (8) That the issuing and enforcement of said order by said J. S. Morrison and by the C. F. & Y. V. Railway Company, as plaintiff is advised and believes, was wrongful and unlawful. (9) That by reason of the aforesaid order, wrongfully and unlawfully issued by said J. S. Morrison, and wrongfully and unlawfully carried out and enforced and published against the plaintiff by said J. S. Morrison, chief engineer and superintendent, and by said C. F. & Y. V. Railway Company, the plaintiff has been greatly damaged and injured in his aforesaid business, and in his financial standing and credit as a merchant, dealer, and manufacturer, viz., in the...