Alsop v. Southern Exp. Co

• Decision Date: 25 November 1889
• Citation: 104 N.C. 278,10 S.E. 297
• Parties: Alsop v. Southern Exp. Co.
• Court: North Carolina Supreme Court

10 S.E. 297

(104 N.C. 278)

Alsop

v.Southern Exp. Co.

Supreme Court of North Carolina.

Nov. 25, 1889.

Express Companies—Validity of Rules.

Code N. C. § 1964, provides that agents "of railroads and other transportation companies, whose duties it is to receive freights, shall receive all articles of the nature and kind received by such company for transportation, whenever tendered at a regular depot, * * * and shall forward the same by the route selected by the person tendering the freight under existing laws." Held, that the words "whenever tendered" could not be limited further than to require the tender to be made during reasonable business hours, and were not qualified by the words "under existing laws, " which could be construed as qualifying the word "forward;" and that a rule of an express company forbidding its agents to receive money for shipment, except on and before the day when trains went to the point of destination, was invalid. Merrimon, C. J., dissenting.

Civil action, brought in the court of a justice of the peace, to recover a penalty of $50, under the provision of section 1964 of the Code, and heard on appeal to the superior court of Halifax, before MacRae, J., on the following case agreed: "(1) The defend-ant is a common carrier and transportation company, duly chartered, and doing business in the state of North Carolina. (2) That on the 9th day of January, 1889, the plaintiff tendered to the defendant's agent, at Halifax, (a regular station on the Wilmington & Weldon Railroad Company line, from which the defendant company shipped freight by express,) whose duty it was to receive freight and money at said station for shipment, the sum of $70 in money, for shipment by said company to Battleboro, a station at which there was an express office and agent; and the agent declined to receive the same on said day. (3) The defendant company, by virtue of their charter, were regular carriers engaged in the transportation of money and other articles by express. (4) That, when said money was tendered for shipment to the defendant's agent, he informed the plaintiff that he could not receive it for shipment on that day; that an order had been issued a few days previous, from the superintendent of the company, directing the agents not to receive money for shipment by express, un-less the same was tendered prior to the arrival and departure of the train going in the direction of the point of destination on which the company shipped such articles. (5) That the said money was tendered to the agent for shipment after the departure of the train for Battleboro; and that the agent informed the plaintiff that he would receive said money on the following morning, and transport it to its destination. (6) That there was only one train passing Halifax, going towards Battleboro, during the day of tender, on and by which the defendant transported express. (7) That said money was received for shipment two days thereafter, and shipped by defendant to its destination. (8) That the notice to the agents of the company not to receive shipments of money, unless tendered prior to the departure of the train, was sent out in the form of a circular letter to the agents; and that the public had not been notified of such notice, nor did the plaintiff know of such regulation until so informed by the agent. (9) That the train for Battleboro left Halifax at 12.55 p. m., and said money was tendered at 2 p. m., on said 9th day of January." On the foregoing facts agreed, it was considered by the court that the defendant is a transportation company within the meaning of section 1964 of the Code, and that money was an article of the nature and kind received by such company for transportation. It was further considered that said company might receive money for transportation, under reasonable regulations as to the time during the day when it would receive the same; and that it was reasonable to require that money tendered for transportation to said company should be tendered before the arrival and departure of the train on which the same was to be transported. Judgment against the plaintiff for costs, and that the defendant go without day. Plaintiff appeals.

R. O. Burton, Jr., for appellant. W. H. Day, for appellee.

Avery, J., (after stating the facts as above.) This controversy depends upon the construction given to section 1964 of the Code, which is as follows: "Agents or other officers of railroads and other transportation companies, whose duties it is to receive freights, shall receive all articles of the nature and kind received by such company for transportation, whenever tendered at a regular depot, station, wharf, or boat-landing, and shall forward the same by the route selected by the person tendering the freight under existing laws, and the transportation company represented by any person refusing to receive such freight shall be liable to a penalty of fifty dollars; and each article refused shall constitute a separate offense." The plaintiff tendered to the defendant's agent at Halifax, (a regular station on the Wilmington & Weldon Railroad line, from which the defendant company shipped freight and money,) $70 in money, for shipment to Battleboro, another station on said line of railroad, at which the defendant company had an office and an agent; and the agent refused to receive it, because the company had ordered its agents not to receive money, except on

the same day of and prior to the arrival and departure of trains going in the direction of the point to which the shipment was destined. The tender was made at o'clock p. m., and a train carrying express freight had passed at 12.55 o'clock p. m., on the same day. According to the schedule, the next train by which the defendant shipped money and freight would pass on the next day, at 12.55 o'clock p. m. If the parties had not so agreed, the law would have determined that money was an article of the nature and kind usually received by express companies for transportation, and, moreover, that it was the peculiar business of corporations of this character to carry money, and small but valuable packages. Express Co. v. Railway Co., 5 Myer, Fed. Dec. 670. While express companies, as declared by Justice Miller, (Express Co. v. Railway Co.,) do not carry bulky freight, it is not the business of railway companies to carry money; and the latter cannot be held liable for its loss, while being transported in the trunk of a passenger, beyond what a prudent man would deem proper and necessary for traveling expenses. Jordan v. Railroad Co., 5 Cush.69. So that it is peculiarly the business of express companies to carry and collect money along the lines of our railways. The meaning of that portion of section 1964 of the Code that is material to the settlement of this controversy would not be plainer, if, by dispensing with verbiage that is unnecessary, because applicable to other corporations, it should be summarized thus: "Agents or officers of express companies shall receive money, whenever tendered for shipment at a regular station, where such companies have agents, and are accustomed to receive goods for transportation." If we adopt this fair and reasonable interpretation of the language of the law, it would only remain for the court to decide whether the regulation with regard to hours of business is reasonable, and one that would be sustained, as within the purview of the powers of the company.

When we had banks issuing bills under charters granted by the state, they were required to redeem their bills, when tendered, with gold or silver coin; but the courts construed the requirement to mean when offered for redemption within such business hours as the banks had a right to prescribe. But it has been held that these hours must be reasonable, and adapted to the peculiarnature of the business that the corporation is transacting with the public in general. In Marshall v. Express Co., 7 Wis. 1, the court held that, though a bank might prescribe hours of business from 9 a. m. to 4 p. m., yet they could not compel an express company to conform strictly to such hours in the delivery of money; and that a tender to the bank of money packages at 5 p. ii. would be good, if the jury found that a reasonable hour for making it. In Marshall v. Express Co., supra, the court say: "It was therefore very proper for the parties to prove, and the jury to consider, the usual mode of doing the particular business in question, [that of receiving and forwarding packages by express] in reference to the time of the arrival and departure of trains with w hich the parties (consignor, consignees, and carriers) in this case are shown to be familiar. Because notes due the bank on a particular day must be paid before the usual hour of closing the bank on that day, it by no means follows that a mechanic making re-pairs on its building must quit work at that hour, or that he must present his bill within the prescribed period." While granting the power of the bank to make reasonable regulations generally, the court say, further: "The rules prescribed, and the hours of business designated, must be reasonable, and adapted to the exigencies of the particular kind of business in reference to which they are established." Such was the view of the common law, presented with irresistible force and great clearness by the learned judge who delivered this opinion, now cited as the leading case, upon the right to establish hours of business, and upon the question whether, when prescribed, the law will enforce conformity to them, as reasonable, on the part of other persons and corporations dealing with the framers of such regulations. It will be noted that the court there held that a tender at a reasonable hour, and a refusal to receive by the bank, relieved an express company of the responsibility of insurers, and changed their relation to the bank to that of a mere mandatary, liable for gross negligence only, though the teller of the...