Burlington Lumber Co. v. Southern Ry. Co.

• Decision Date: 02 March 1910
• Citation: 67 S.E. 167,152 N.C. 70
• Parties: BURLINGTON LUMBER CO. v. SOUTHERN RY. CO.
• Court: North Carolina Supreme Court

67 S.E. 167

152 N.C. 70

BURLINGTON LUMBER CO. v. SOUTHERN RY. CO.

Supreme Court of North Carolina

March 2, 1910

Appeal from Superior Court, Alamance County; Long, Judge.

Action by the Burlington Lumber Company against the Southern Railway Company. Plaintiff had judgment, and defendant appeals. Affirmed.

The plaintiff sought to recover the penalty prescribed by Revisal 1905, § 2631, for the refusal of the defendant to receive for shipment to Saginaw, Mich., certain milling machinery tendered it by the plaintiff on January 28, 1907, no bill of lading for said machinery being issued until April 3, 1907. The plaintiff's contention was that the defendant failed and refused to receive said machinery for shipment upon tenders made daily and continuously for a period of 65 days and that by reason of said refusal said defendant became indebted to the plaintiff in the sum of $3,050, all of this amount in excess of $2,000 being remitted by the plaintiff. The defendant denied that there was any tender of machinery for shipment until April 3, 1907, the day on which bill of lading was issued. It alleged that Revisal 1905, § 2631, was unconstitutional, in so far as it affected interstate shipments. It also alleged that the plaintiff had no such interest in the said machinery as entitled it to bring this action. There was a verdict for the plaintiff and a judgment in accordance therewith from which defendant appealed.

W. B Rodman and Parker & Parker, for appellant.

W. H Carroll, for appellee.

CLARK C.J.

The exceptions 1, 2, and 12 are for failure to give certain prayers for instruction. On examination we find they were given substantially in the charge, which is sufficient. Harris v. R. R., 132 N.C. 163, 43 S.E. 589; R. R. v. Horst, 93 U.S. 291, 23 L.Ed. 898.

Exceptions 4, 5, 6, and 7 are for refusal to give defendant's prayers for instructions 3, 4, 6, and 7, which are, in substance that this being an interstate shipment the defendant was required to establish, file, and publish its rate between Burlington, N. C., and Saginaw, Mich., before shipping this freight, and that the burden was on the plaintiff to show that the rate had been so filed. The duty to file such rate was on the defendant, the fact was in its peculiar knowledge, and its failure to show that it had discharged such duty cannot absolve it from its duty to the plaintiff to accept and ship his freight. It cannot plead its own default as a defense to another default. Indeed, on April 3d, the agent at Burlington did get such rate from division headquarters at Greensboro, 21 miles away. There is no evidence that such rate could not have been procured at any time prior thereto.

The court committed no error in refusing these prayers for instruction. The proper establishing publication and filing rates will be conclusively presumed. In Reid v. R. R., 150 N.C. 764, 64 S.E. 879, the court in passing upon the same contention said: "The presumption is that the company has complied with the law, and if it were otherwise we are of the opinion that the act of Congress and the orders of the Commission made thereunder, requiring the publication of rates, was made for an entirely different purpose from that involved in this inquiry, and does not constitute such interfering action." To same purport R. R. v. Oil Mill, 204 U.S. 449, 27 S.Ct. 358, 51 L.Ed. 562. In Harrill v. Railroad, 144 N.C. 540, 57 S.E. 385, the court says: "It must be presumed against the contention of the defendant that it has complied with the law by filing its schedule of rates, fares, and charges with the Commission, and by publishing the same." The federal statute does not prohibit the receipt or forwarding of a single shipment, but forbids the carrier to "engage or participate in the transportation of passengers or property" interstate without filing its rates. It is the business of a common carrier, which the defendant is forbidden to exercise without filing its rates, and the statute has no sort of application to this case where the defendant was carrying on such business and presumptively, at least, under authority of law.

Exceptions 6, 13, 14, and 16 call in question the constitutionality of Revisal 1905, § 2631, as applied to interstate shipments. We have repeatedly passed upon this contention. The defendant's brief admits this, and cites eight decisions of this court which it asks us to overrule. In one of the latest of these --Reid v. R. R., 149 N.C. 423, 63 S.E. 112-- the authorities were reviewed, and the court said: "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 wholly done within this state; it is not a part of the act of transportation, and our penalty statute applies. This was held by Avery, J., in Bagg v. Railroad, 109 N.C. 27 [14 S.E. 79, 14 L. R. A. 596, 26 Am. St. Rep. 569], where the railroad company received the shipment for 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 , and it was held that this section, giving a penalty for failing and refusing to accept for shipment the 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 of these cases were cited and reaffirmed by Walker, J., in Walker v. Railroad, 137 N. C., at page 168 . 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 was liable for a penalty under Revisal [1905] § 2631.' In Harrill v. Railroad, 144 N.C. 532 (Walker, J.), it was held that Revisal [1905] § 2633, imposing a penalty for failure to deliver freight was valid, though the freight was interstate. There the penalty was incurred after the transportation had ceased. Here the penalty occurred before the transportation had been begun and before the freight was even received and accepted for transportation." When the case was again before the court (Reid v. R. R., 150 N.C. 764, 64 S.E. 878), Justice Hoke, after reviewing and approving the former decision, said: "Since this decision of the Morris-Scarboro-Moffitt Company v. Express Company [146 N.C. 167, 59 S.E. 667, 15 L. R. A. (N. S.) 983] was rendered, the Supreme Court of the United States, the final authority on these matters, has held, on a question relevant to this inquiry that 'Notwithstanding the creation of Interstate Commerce Commission, and the delegation to it by Congress of the control of certain matters, the state may, in the absence of express action by Congress or by such commission, regulate, for the benefit of its citizens, local matters indirectly affecting interstate commerce.' This principle was announced and sustained in Railroad v. Flour Mill, 211 U.S. 612 [29 S.Ct. 214, 53 L.Ed. 352], a case which involved the right of the court to compel the railroad company or common carrier to place cars on a siding which had been prepared for the purpose, and for the benefit and convenience of a flouring mill engaged in making shipments of interstate commerce." The above decisions have been since followed by Connor, J. (Garrison v. Southern Ry. Co., 150 N.C. 575, 592, 64 S.E. 578), with full review of the authorities, and no dissent. In fact the duty to receive freight "whenever tendered" was a common-law duty. Alsop v. Express Co., 104 N.C. 278, 10 S.E. 297, 6 L. R. A. 271, cited and approved in Garrison v. R. R., supra, at page 582 of 150 N. C., at page 581 of 64 S.E. That the interstate commerce did not begin till the goods were accepted for shipment and bill of lading issued is held in Match Co. v. Ontonagon, 188 U.S. 94, 23 S.Ct. 266, 47 L.Ed. 394, citing Coe v. Errol, 116 U.S. 517, 6 S.Ct. 475, 29 L.Ed. 715, where Bradley, J., held that "not till goods have begun to be transported from one state to another do they become the subjects of interstate commerce, and as such subject to federal regulation." In this opinion (page 528 of 116 U.S., page 479 of 6 S.Ct. ) he says: "It is true it was said in the case of The Daniel Ball, 10 Wall. 565 : 'Whenever a commodity has begun to move as an article of trade from one state to another, commerce in that commodity has commenced.' But this movement does not begin until the articles have been shipped or started for transportation from the one state to the other. *** Until shipped or started on its final journey out of the state, its exportation is a matter altogether in fieri, and not at all a fixed and certain thing." Besides, the statutory enforcement, under penalty, of the commonlaw duty to accept freight "whenever tendered" is not in the scope of terms of any act of Congress, and is neither an interference with nor a burden upon interstate commerce, but in aid of it.

Exceptions 9, 10, and 11 are for refusal of prayers based on the theory that the goods were accepted for shipment January 28, 1907, which is not supported by evidence, and were properly refused. Hassard-Short v. Hardison, 117 N.C. 60, 23 S.E. 96.

Exceptions 17, 18, 19, 20, 21, 22, and 23 present only one question, and may therefore be treated together. Did the plaintiff have the right to bring this action? Was he the aggrieved party? The law is correctly set forth in the following citations "The shipper of the goods is the party aggrieved, and is the one entitled to sue for the penalty prescribed in Revisal 1905, § 2631, which arises from the wrongful refusal of the...