Davis v. Southern Ry. Co

• Decision Date: 11 March 1908
• Citation: 147 N.C. 68,60 S.E. 722
• Court: North Carolina Supreme Court
• Parties: DAVIS. v. SOUTHERN RY. CO.

60 S.E. 722

147 N.C. 68

DAVIS.

v.SOUTHERN RY. CO.

Supreme Court of North Carolina.

March 11, 1908.

1. Carriers—Carriage of Goods—Delay in Transportation — Statutory Penalties— Parties Aggrieved.

Under Revisal 1905, § 2632, providing that the party aggrieved may recover the penalty for a carrier's unreasonable delay in transporting goods, a consignor shipping goods under an agreement that the consignee shall not pay for them until their arrival is the party aggrieved by delay in transportation, and he may recover the penalty, nothing else appearing.

2. Same—Validity of Statutes.

Revisal 1905, § 2632, imposing a penalty on a carrier for its failure to transport goods within a reasonable time recoverable by the person aggrieved, is constitutional.

3. Trial — Special Issues — Submission — Questions to be Submitted.

In an action against a carrier for the penalty imposed by Revisal 1905, § 2632, for delay in transporting freight, an issue, "what amount, if any, is the plaintiff entitled to recover of the defendant on account of the failure to promptly ship" the freight, is objectionable as presupposing that there had been a failure on the part of the carrier to perform its duty, and merely requiring the jury to ascertain the amount of the penalty incurred for the default, and two issues should be submitted: (1) Was the freight transported and delivered within a reasonable time? (2) In what sum is the carrier indebted to plaintiff?

4. Same—Instructions.

Where, in an action against a carrier for the penalty imposed by Revisal 1905, § 2032, for delay In the transportation of freight, the court submitted the issue, what amount, if any, is the plaintiff entitled to recover of defendant on account of the failure to promptly ship the freight, a charge that if the jury believed the evidence they should answer the issues, "Yes, " was erroneous, for the charge and the issue did not correspond, and the response directed to be made was inappropriate to the issue.

5. Carriers—Delay in the Transportation op Goods—Statutory Penalties—Actions —Questions for Jury.

In an action against a carrier for the penalty imposed by Revisal 1905, § 2632, for delay in transporting freight, it is for the jury to ascertain whether there had been an unreasonable delay measured by the ordinary time required for transportation, and how much delay there had been after making due allowance to the carrier as provided by the statute, and thus determine the amount due plaintiff, and the judge cannot decide as a matter of law what amount is due though the jury should believe the evidence, for the jury must decide the time of the delay before the amount of the penalty can be ascertained.

6. Commerce—Interstate Commerce.

Where any part of the transportation of freight from one point in the state to another point therein is outside of the state, the shipment is interstate traffic, and is not within Revisal 1905, § 2632, imposing a penalty on a carrier for its failure to transport freight within a reasonable time.

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

Action by A. H. Davis against the Southern Railway Company. From a judgment for plaintiff, defendant appeals. Reversed, and new trial granted.

W. B. Rodman and O. F. Mason, for appellant.

Quinn & Hamrick, for appellee.

WALKER, J. This Is an action to recover the penalty given by section 2632 of the Revisal of 1905 for delay in shipping lumber. The case is not governed by the principle of Marble Co. v. Railway (decided at this term) 60 S. E. 719, as argued by the defendant's counsel, for it does not appear that any part of the transportation was beyond the limits of the state. The lumber was shipped from Lattimore, or Washburn's Siding, to Gastonia, all being in this stata The agreement between the plaintiff, as consignor, and Henry & Bradley, the consignees at Gastonia, was that the latter should not be required to pay for the lumber until it arrived at Gastonia. The plaintiff was therefore the party aggrieved, within the meaning of section 2632, and can maintain this action for the penalty. Summers v. Railroad, 138 N. C. 295, 50 S. E. 714. The very question is considered and decided in Cardwell v. Railroad, 145 N. C. —, 59 S. E. 673. The constitutionality of section 2632 and similar provisions of law imposing penalties for a breach of duty in transporting goods by common carriers is too firmly established to be now questioned. Branch v. Railroad, 77 N. C. 348; Walker v. Railway, 137 N. C. 163, 49 S. E. 84; Stone v. Railway, 144 N. C. 220, 56 S. E. 932; Morris-Scarboro-Moffitt Co. v. Express Co., 145 N. C.-, 59 S. E. 667; Cardwell v. Railway, supra. So that the plaintiff might have a good cause of action for the penalty, nothing else appearing, if there was a failure in this case to transport the lumber within a reasonable time, and we would affirm the judgment, but for the fact of error in the charge of the court. The issue submitted and the answer thereto were as follows: "What amount, if any, is the plaintiff entitled to recover of the defendant, on account of the failure to promptly ship the car load of lumber? Ans. $70.00." The form of that issue is objectionable, as it presupposes that there had been a failure to perform its duty by the defendant as carrier, and merely required the jury to ascertain the amount of the penalty incurred for the default. Denmark v. Railroad, 107 N. C. 185, 12 S. E. 54. We suggested at the last term, in Hamrick Bros. & Co. v. Railway, 145 N. C. —, 59 S. E. 666, that two issues be submitted in cases of this kind: (1) Was the freight transported and delivered within a reasonable time? (2) In what sum is the defendant indebted to the plaintiff? "In this way, " said Justice Connor for the court, "the attention of the parties and the jury is drawn to the real questions in issue." But waiving the defect in the issue, wethink the charge of the court was erroneous. The jury were instructed that if they believed the evidence they should answer the issue, "Yes, " as a matter of law. This was all of the charge, and it was duly excepted to by the defendant. The charge and the issue do not correspond, and the response directed to be made would...