Corbett v. Atlantic Coast Line R. Co.

• Decision Date: 12 July 1933
• Docket Number: 294.
• Parties: CORBETT v. ATLANTIC COAST LINE R. CO.
• Court: North Carolina Supreme Court

170 S.E. 129

205 N.C. 85

CORBETT v. ATLANTIC COAST LINE R. CO.

No. 294.

Supreme Court of North Carolina

July 12, 1933

Appeal from Superior Court, Pender County; Devin, Judge.

Action by W. A. Corbett, trading and doing business as the Corbett Package Company, against the Atlantic Coast Line Railroad Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

Civil action to recover (1) penalties in the aggregate sum of $3,750 for wrongful refusal to receive and transport freight duly tendered by plaintiff to defendant; (2) damages in the sum of $2,800 for cancellation of contract which plaintiff had with Castle Hayne Growers & Shippers Association alleged to have been brought about by defendant's wrongful act and (3) freight overcharge in the sum of $57.45 on shipment actually transported.

A compulsory reference was ordered under the statute, which resulted in report and judgment for plaintiff in the amounts and for the causes above set out.

Defendant appeals, assigning errors.

Carr Poisson & James and W. A. Townes, all of Wilmington, for appellant.

Burney & McClelland and Bryan & Campbell, all of Wilmington, for appellee.

STACY Chief Justice.

While the record is voluminous and has entailed much study and investigation, the case really falls within a very narrow compass.

The questions presented are these:

(1) Were the commodities, "wood splint or veneer boxes fruit or berry inside carriers, s. u. nested," "vegetable hampers nested and wood splint or veneer boxes, fruit or berry inside carriers, s. u. nested," and "vegetable hampers nested," manufactured by plaintiff and duly tendered the defendant for intrastate shipments, subject to lumber rates under note A, item 66 of E. H. Dulaney, I. C. C. No. 21, exceptions to Southern Classification No. 47 as follows: "Wood, splint, or veneer boxes, fruit or berry (inside carriers), s. u. nested, or fruit or vegetable hampers, wood, splint, s. u. nested, tops in bundles; straight or mixed, C. L. Min. Wt. 30,000 lbs. lumber rates"?

There is ample evidence to support the finding that the shipments tendered fall within the above classification and that the correct freight charges were duly proffered with said shipments. True, there is evidence to the contrary, but, in view of the findings of the referee, which were approved by the judge, this evidence may be put aside on appeal as no longer essential or material to the controversy.

In reference cases, the findings of fact, approved or made by the judge of the superior court, if supported by any competent evidence, are not subject to review on appeal, unless some error of law has been committed in the hearing of the cause. Wallace v. Benner, 200 N.C. 124, 156 S.E. 795; Robinson v. Johnson, 174 N.C. 232, 93 S.E. 743.

Speaking to the subject in Thompson v. Smith, 156 N.C. 345, 72 S.E. 379, Walker, J., delivering the opinion of the court, and pointing out the difference between the duties of the trial court and the appellate court in dealing with exceptions to reports of referees, said: "We have said that, where the evidence has been considered by the referee and by the judge, upon exceptions to the referee's findings, we will not review the judge's conclusions as to them, because the appellant has had two chances; and when two minds, one at least, and perhaps both, professionally trained and accustomed to weigh evidence, and to compare and balance probabilities as to its weight, arrive at the same conclusion, there is a strong presumption in favor of its correctness; or the same is true, even when the judge differs from the referee as to his findings, and we may safely rely on its correctness. The referee is selected in such cases in place of a jury, and the judge so acts when he reviews the referee. If there is any evidence to support the findings, and no error has been committed in receiving or rejecting testimony, and no other question of law is raised with respect to the findings, we accept what the judge has found as final, as we do in the case of a jury."

Defendant's refusal to accept the shipments tendered by plaintiff was deliberate and peremptory, thus entitling the plaintiff to the penalties prescribed by the statute, if it be constitutional.

2. Is C. S. § 3515, which provides a penalty of $50 for each day that any railroad or other transportation company shall refuse to receive and forward freight duly tendered with proper freight charges under existing tariffs, constitutional?

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