Garrison v. Southern Ry. Co.

• Decision Date: 05 May 1909
• Citation: 64 S.E. 578,150 N.C. 575
• Parties: GARRISON v. SOUTHERN RY. CO.
• Court: North Carolina Supreme Court

64 S.E. 578

150 N.C. 575

GARRISON v. SOUTHERN RY. CO.

Supreme Court of North Carolina

May 5, 1909

Appeal from Superior Court, Buncombe County; Guion, Judge.

Action by W. A. B. Garrison against the Southern Railway Company. From a judgment for plaintiff, defendant appeals. No error.

This action is instituted for the recovery of the penalty imposed by section 2631, Revisal 1905, for failure to receive a car load of lumber tendered defendant by plaintiff at Black Mountain Station to be shipped to W. H. Westall at Asheville;, both points being within this state. The facts as stated in defendant's brief, are: Plaintiff had contracted to sell lumber f. o. b. cars at Black Mountain to Westall at Asheville. Plaintiff hauled the lumber to Black Mountain, loaded it on cars furnished by defendant June 7 1906, and demanded a bill of lading, which defendant's agent declined to give to him upon the ground that an embargo had been placed upon shipments of lumber consigned to W. H Westall and English & Co. at Asheville on account of accumulation of business for them at that point. When the embargo against Westall was placed, there were many loaded cars on defendant's yard at Asheville for him which he could not or would not handle, and this, with other conditions, created a congested condition of the Asheville yards and caused the embargo to be placed upon shipments to him. There was evidence tending to show: That the defendant's yards and tracks at Asheville were congested by an unusual number of cars of freight which were left unloaded. That on May 30, 1906, defendant's superintendent issued the following notice to "All Agents, Asheville Division: Until further notice, place embargo on all shipments of lumber consigned to W. H. Westall and English & Co. at Asheville, N. C., account accumulation of business for these people at Asheville." On June 16th the embargo against Westall was canceled. There was evidence tending to show: That, before and during the time of the embargo, defendant had on its yard and tracks at Asheville for Westall some 18 or 20 cars of lumber-had more than could be placed on his tracks for unloading, and they occupied other tracks. That they congested the yard and occupied cars that defendant required to move other freight on the line. The traffic in the summer of 1906 was one-third heavier than ever before. Plaintiff testified that he made several demands upon defendant's agent for a bill of lading, each of which were refused until June 20, 1906, when he gave him the bill and shipped the car. The only issue submitted to the jury was directed to the number of days which defendant refused to receive the car load of lumber. Under instructions of his honor the jury found a delay of "nine days deducting two Sundays." His honor rendered judgment for the penalty of $50 a day, imposed by the statute, amounting to $450. Defendant excepted and appealed, assigning errors set out in the opinion.

When a carrier shows the existence of conditions for which it is not responsible, preventing the discharge of its duty to receive goods for shipment, it will not be held liable for the penalty imposed by Revisal 1905, § 2631, for failure to receive and ship goods.

Though penal laws are to be strictly construed, they cannot be given a construction so strict as to render them ineffective.

W. B. Rodman, Moore & Rollins, and R. G. Lucas, for appellant.

Craig, Martin & Winston, for appellee.

CONNOR J.

The exceptions to the rulings of his honor are not very clearly stated in the record, but in the well-considered brief of defendant's counsel the questions argued before us are thus formulated: (1) Was the defendant entitled to have its reasons and excuses for not issuing the bill of lading, on demand, considered by the jury? (2) Can the plaintiff recover a penalty for each day of delay to ship without showing a daily renewal of the tender? (3) Is the statute (Revisal 1905, § 2631) void: (a) As a regulation of interstate commerce in conflict with article 1, § 8, cl. 3, of the Constitution; (b) as being in conflict with the fourteenth amendment to the federal Constitution?

In discussing the first question we are uncertain whether his honor was of the opinion that the statute imposed upon the defendant an absolute duty to receive plaintiff's lumber for shipment to Westall, and that no defense was open to it other than "the act of God or the public enemy," or whether, taking all of the evidence as true, it failed to show such a condition as excused the defendant from receiving the lumber for shipment to Westall. Having received the testimony, over plaintiff's objection, it would seem that his honor was of the opinion that no valid defense was established. As the construction of the statute has, in this and other appeals, been pressed upon our consideration, we think it well to discuss and decide it. Section 2631 provides that transportation companies "whose duty it is to receive freight for shipment" shall, for refusing to receive all freight "whenever tendered" to its agent, etc., forfeit and pay a penalty of $50 for each day it refuses to receive said freight, together with actual damages sustained. The freight must be tendered at a regular depot and within business hours. Alsop v. Express Co., 104 N.C. 278, 10 S.E. 297, 6 L. R. A. 271. It is well settled that, when statutes give new and additional remedies for the enforcement of rights and duties given or imposed by the common law, unless a contrary intention is manifested, the courts will not assume that the Legislature intended to enlarge or modify the common-law right or duty. This we think is illustrated by the decisions of this court.

In Branch v. Railroad, 77 N.C. 347, the first case in which a statute imposing a penalty upon a common carrier came before the court, it was insisted by the defendant that, although the language of the statute was imperative and contained no exonerating or excusing exceptions, it was open to the defendant to show that conditions existed which excused it from performance of the duty and liability for the penalty. The statute (Acts 1874-75, p. 322, c. 240; Code 1883, § 1967) imposed a penalty of $25 a day for "permitting freight to remain unshipped for more than five days unless otherwise agreed." Mr. Justice Rodman, in an able opinion, held that: "The act does not supersede or alter the duty or liability of the company at common law. The penalty in the case provided for is superadded. The act merely enforces an admitted duty." He further says that it was not necessary to decide whether "any excuse, short of the act of God or the king's enemies, would suffice," because "the excuse offered was insufficient." He proceeded, however, to discuss the reasons assigned for not discharging the duty, and concludes that the conditions which were shown "were brought about by its own acts in inducing large shipments from points beyond its southern terminus." The defendant was an intrastate road.

In Keeter v. Railroad, 86 N.C. 346, defendant showed that there was an accumulation of cars at its depot at Halifax, N.C. The court, without discussing the question, said that the excuse was insufficient, citing Branch's Case, supra. It did not appear how the conditions at Halifax were brought about. The court disposed of the question by saying that "it was the duty of defendant to provide cars for the transportation of all the freight delivered." This language indicated the opinion that the duty was absolute, and that no excuse could be heard to avoid the recovery of the penalty, when it was not discharged.

At the next term Whitehead v. Railroad, 87 N.C. 255, was before the court. The conditions urged by defendant as an excuse for failing to ship within five days were found by the superior court and set out upon the record. Plaintiff relied upon the language used in Keeter's Case, supra. Ashe, J., who wrote the opinion in this case, said: "It may be well to observe that the court did not go into the discussion of that question," because the delay did not go beyond five days. The learned and always candid justice said: "The court could not have intended to hold that there could be no excuse, when it was citing Branch's Case with approval, in which it is conceded that excuses may be admitted." After discussing the facts found by the judge, he concludes: "The delay in making the shipment, then, it seems, has not been caused by any act of negligence or default on the part of the defendant, but resulted from the concurrence of circumstances entirely beyond its control." Smith, C.J., in a concurring opinion, after citing authorities holding that exonerating conditions may be shown, says: "This seems to me a just view of the carrier's liability at common law; and the statute, as this court declares in the case cited, does not enlarge or extend the obligation, but merely provides an additional method of enforcing it." Justice Ruffin dissented from the conclusion reached in regard to the sufficiency of the conditions shown, to excuse defendant from discharging the duty, but concurred that the statute created no new duty, and that conditions could be shown in excuse. He said that the effect of the statute was not to enlarge a common-law duty, but "is intended simply to enforce an admitted duty." In regard to the conditions which would, in his opinion, be held sufficient to excuse the carrier, he says: "Nothing short of that diligence which would acquit the defendant of his common-law duty and liability should be allowed to exonerate it from the penalty prescribed by the statute."

We conclude from these decisions, sustained by reason, that when the carrier shows the existence of conditions, for which it is not responsible, preventing or rendering impossible the...