Beam v. Southern Ry. Co

• Decision Date: 16 December 1908
• Citation: 63 S.E. 112,149 N.C. 423
• Court: North Carolina Supreme Court
• Parties: REID & BEAM . v. SOUTHERN RY. CO.

63 S.E. 112

(149 N.C. 423)

REID & BEAM .

v.SOUTHERN RY. CO.

Supreme Court of North Carolina.

Dec. 16, 1908.

1. Commerce (§ 61^*)—Freight—Refusal to Receive — Penalty — Statutes — Interstate Shipments.

Revisal 1905, § 2631, providing a penalty for refusal to accept freight for shipment, is not invalid as applying to interstate traffic, the gist of the offense being the carrier's refusal to receive the goods for shipment, which is an act done wholly within the state, and no part of the act of transportation.

[Ed. Note.—For other cases, see Commerce, Cent. Dig. § 81; Dec. Dig. § 61.*]

2. Carriers (§ 20*)—Refusal to Ship—Penalty—Plaintiffs.

In an action for penalty for a carrier's refusal to accept freight for shipment, in violation of Revisal 1905, § 2631. the owner of the freight is the proper party plaintiff, there being

no consignee until after the delivery of the bill of lading.

[Ed. Note.—For other cases, see Carriers, Dec. Dig. § 20.*]

3. Carriers (§ 88*)—Freight—Delivery.

Where a car load of freight is consigned to a place where there is a side track, but no depot platform or agent of the carrier, which is known to the parties, leaving the car on the side track is a good delivery, and relieves the carrier of further responsibility.

[Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 2S0, 281; Dec. Dig. § 88.*]

4. Carriers (§ 39*) — Freight — Refusal to Receive—Excuse.

That the point to which freight was to be consigned was not a regular station, at which an agent of the carrier was kept, was no valid excuse for the carrier's refusal to receive the freight for transportation.

[Ed. Note.—For other cases, see Carriers, Cent. Dig. § 98; Dec. Dig. § 39.*]

Appeal from Superior Court, Rutherford County; Ward, Judge.

Action by Reid & Beam against the Southern Railway Company. Judgment for defendant, and plaintiffs appeal. Reversed.

Edwards & Elliott, for appellants.

W. B. Rodman and GaJJert & Carson, for appellee.

CLARK, C. J. Action for penalty under Revisal 1905, § 2631, for refusal to "receive for transportation" a car load of shingles tendered to defendant's agent at Rutherfordton July 2, 1906, for shipment to consignee at Scottsville, Tenn. The plaintiff testified that he tendered prepayment of freight, and repeatedly, on many succeeding days, again asked that the car be shipped and offered to prepay freight The agent refused to ship because he said he did not know where Scottsville was, nor the rate. The plaintiff told the agent that Scottsville was near Knoxville, which Is a station on defendant's road. On July 17th a new agent came to Rutherfordton. He had a talk with plaintiff about the car load of shingles, and on July 18th, wired an inquiry to the division freight agent, who the same day wired back the rate, and the car was sent forward on July 19th. It appeared by testimony of defendant's witnesses that Seottville, instead of Scottsville, is the name of the station; that it is a siding a few miles from Knoxville on a branch road operated by the defendant; that It Is not a regular station, but freight is usually shipped there on waybills made out to a regular station two miles away. On July 19th the defendant shipped the car on a waybill to "Scottsville, Tenn., " the freight being prepaid. The name "Scottsville, Tenn., " does not appear in the "Official Railway Guide" nor in the "Shipping Guide" used by railroad companies. The fact that on July 18th the new agent promptly learned where Seottville, Tenn., was, and the rate, and gave a bill of lading and shipped the car load next day, is evidence that the rate and des-tination could have been ascertained by the other agent on July 2d.

The defendant, contends, however, that Revisal 1905, § 2631, giving a penalty for refusing to accept freight for shipment, is unconstitutional when the freight is to be shipped into another state. But "refusing to receive for shipment" is an act done wholly within this state. It is not part of the act of transportation, and our penalty statute applies. This was held by Avery, J., in Bagg v. Railroad, 109 N. C. 279, 14 S. E. 79, 14 L. R. A. 596, 26 Am. St. Rep. 569, where the railroad company received the freight for shipment to a point in another state, but negligently detained it for five days before shipping. The precise point herein was raised in Currie v. Railroad, 135 N. C. 536, 47 S. E. 654, and it was held that this section, giving a penalty for failing and refusing to accept for shipment a car load of lumber, was not unconstitutional as an interference with interstate commerce, when the lumber was offered for shipment to a point in another state. Both these cases were cited and reaffirmed by "Walker, J., in Walker v. Railroad, 137 N. C. 168, 49 S. E. 84. In Twitty v. Railroad, 141 N. C. 355, 53 S. E. 957, it was held (Brown, J.) that, where the agent held the freight in storage, but refused to give a bill of lading because he did not know the freight rates, this was "a refusal to receive for transportation, and the railroad company is liable to a penalty under Revisal 1905, § 2631." The court said: "The fact that the agent did not know the freight rates is no excuse. It is his duty to know them. At least he could readily have telegraphed and ascertained, and need not have refused to give a bill of lading on that account." In Harrill Bros. v....