Harrill. Bros v. Southern Ry

Decision Date14 May 1907
Citation144 N.C. 532,57 S.E. 383
PartiesHARRILL. BROS. v. SOUTHERN RY.
CourtNorth Carolina Supreme Court
1. Carriers—Delivery of Freight to Consignee.

Revisal 1905, § 2633, providing that carriers shall settle their freight charges according to the rate stipulated in the bill of lading, providing the rate therein be in conformity with the classifications and rates made and filed with the Interstate Commerce Commission in case of shipments from out the state, and with those of the corporation commission of the state in case of shipments wholly within the state, that it shall be the duty of such common carriers to inform any consignee of the correct amount due for freight according to such classification and rates, and on payment or tender of the amount due on any shipment, which has arrived at its destination, according to such classification and rates, such carrier shall deliver the freight to the consignee subject to a penalty for failure or refusal to do so, is not limited in its application to a shipment where rates have been established and filed; but the carrier must know and inform the consignee of the charges in any case.

2. Commerce — Interference with Interstate Commerce.

Revisal 1905, § 2633, requiring a carrier to inform a consignee of the freight charges and to deliver the freight on tender or payment of the charges, subject to a penalty for failure to do so, is not an interference with interstate commerce in case of an interstate shipment, in violation of Const. U. S. art. 1, § 8, cl. 3.

3. Carriers—Penalty for Failure to Deliver Freight.

Under Revisal 1905, § 2633, providing that the carrier shall inform the consignee of the amount of freight charges and deliver the freight on tender or payment thereof, and that any failure or refusal to comply with such provisions shall subject the carrier to a penalty of $50 for each such failure or refusal, only one penalty is recoverable on one shipment, though there are several demands for delivery and refusals thereof.

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

Action by W. A. Harrill and others, doing business under the name of Harrill Bros., against the Southern Railway. Judgment for plaintiffs. Defendant appeals. Modified and affirmed.

This action was brought to recover penalties under Revisal 1905, § 2633, for failure to deliver goods shipped over the defendant's line of railway from without the state to Rutherfordton, in this state, after tender of the freight charges, and was heard upon a case agreed, which is as follows: (1) The defendant is a corporation and operates a line of its railroad through Rutherford county, and has a depot at Rutherfordton, in said county, and the plaintiffs are merchants in said town of Rutherfordton. (2) The plaintiffs on the 15th day of August, 1905. offered to pay the freight charges and take said goods from the depot of defendant, and offered to pay the freight charges, whatever they were, to the agent of defendant at Rutherfordton on each and every day thereafter to and including September 20, 1905. The defendant through its agent, refused to accept or receive any money and to deliver the said freight to plaintiffs, assigning as his reason therefor that he had no waybill, and did not know what the freight charges were, the freight having been transferred to defendant at Harriman's Junction, outside the state of North Carolina. (4) The plaintiffs informed the defendant's agent that the goods were shipped from Cincinnati by Wyler, Acker-land & Co. on August 14, 1905. The boxes containing the goods were marked, "Harrill Bros., Rutherfordton, North Carolina, " and remained in the depot till they were levied upon and removed under claim and delivery proceedings (taken out by the plaintiff) in this case on the 21st day of September. 1905. (5) It is agreed between counsel for both plaintiff and defendant that the above-entitled action may be heard on the foregoing facts out of term by the judge, and that such judgment may be rendered as in law is proper. The court, upon the case agreed, adjudged that the plaintiff recover of the defendant a penalty of $50 per day for 30 days and the costs. To this judgment the defendant excepted and appealed.

Wm. B. Rodman, Geo. F. Bason, and F. H. Busbee & Son, for appellant.

McBrayer, McBrayer & McRorie, for appellees.

WALKER, J. (after stating the case). The goods, it appears in this case, were shipped from Cincinnati, Ohio, to Rutherfordton, in this state, over connecting lines of railway, the defendant's line being one of them, and, having arrived at the latter place and being then in the warehouse of the defendant at Rutherfordton, the plaintiffs, who were the consignees, offered to pay the freight charges, whatever they were, and demanded a delivery of the goods, which was refused by the defendant's agent, for the reason that he did not know what the freight charges were, the goods having been delivered to the defendant at Harriman's Junction, outside of this state. This would seem to make out the plaintiff's case under the statute and entitle him to the penalty. Revisal 1905, § 2633. The defendant, though, resists his recovery upon the following grounds: "(1) That the statute only applies to those shipments where rates have been established by the line or lines for certain points, and those rates have been filed with the Interstate Commerce Commission, in the case of interstate shipments, or with the state commission, in the case of intrastate shipments. (2) That the statute is in conflict with the fourteenth amendment to the Constitution of the United States. (3) That the statute, in so far as it applies to interstate shipments, is in conflict with the Constitution of the United States (article 1, § 8, cl. 3 [commerce clause]). (4) That only one penalty of $50 can be collected on any one shipment, and that the penalty is not cumula-tive." We do not think that any one of the first three grounds is tenable or sufficient to defeat a recovery by the plaintiff, though we are of opinion that the fourth ground is well taken.

The first objection made by the defendant's counsel is based upon a misconception of the true meaning of the statute under which the action is brought. It does not provide that the penalty for a refusal to deliver freight shall be recoverable only where rates have been made and filed with the Interstate Commerce Commission, so that the making and filing of the rate becomes a condition precedent to the imposition of the penalty for a refusal to deliver, but the meaning of the section is that, upon a tender of the stipulated charges, as stated in the bill of lading, which shall not exceed the amount fixed in the classification and table of rates published and filed with the commission, and, upon refusal to deliver the freight, the penalty shall accrue. If there has been no classification made or rates fixed, published, and filed with the commission, interstate or state, or other compliance with the law, then the rate stated in the bill of lading (if not in itself unreasonable or excessive) applies, subject to any liability of the carrier for having failed to comply with the law; but if such a classification has been made or rates fixed and filed, as provided by law, then the charges must not exceed what the carrier is entitled to receive thereunder. The legislation embodied in section 2633 was intended to recognize and enforce the observance of the rates as fixed under the requirement of the federal law where it is applicable. The provision was made for the protection of the consignee, so that the carrier cannot exact from him, as a condition of the delivery of freight, the payment of excessive freight charges. We see no possible objection to the statute, as thus construed, upon the ground of any conflict with federal laws. If the defendant did not know what the charges were, as fixed by the bill of lading, because it did not have the waybill, it should have known, and it was not the fault of the plaintiffs that the waybill did not accompany the goods and was not received with them or in the usual course of business. The point is made that the statute requires the carrier to inform the consignee of the classification and rates as filed with the commission, and. if none have been filed, it would be impossible to comply with this provision. Again, we say that this was required for the benefit of the consignees, and they are not complaining of an overcharge or excessive demand on the part of the defendant, but expressed their willingness to pay whatever was due. But whose fault would it be. if no schedule is filed? The carrier's, of course. Shall he be permitted to plead his own wrong in excuse for the failure to give the Information? Statutes imposing penalties, it is true, should be construed strictly, but this does not mean that they shall be so construed as to defeat the intention of the Legislature. They should receive a reasonable interpretation, so as to effectuate that intention. Any other construction than the one we have given to section 2633 would be contrary to what was plainly intended. The law does not, of course, require the defendant to give information which it does not possess or could not obtain; but that did not excuse it for violating the statute in refusing to deliver the freight when the plaintiff tendered whatever amount was due to it for transporting the goods. The defendant should have known whether or not it had complied with the law by filing the classification and table of rates with the commission.

The second and third grounds of defense may be considered together. We are unable to see how section 2633 of the Revisal of 1005 is an interference with interstate commerce. Defendant assigns three reasons why it is, and they are these: "It...

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