Hilton Lumber Co. v. Atlantic Coast Line R. Co.
| Decision Date | 17 April 1906 |
| Citation | 53 S.E. 823,141 N.C. 171 |
| Parties | HILTON LUMBER CO. v. ATLANTIC COAST LINE R. CO. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, New Hanover County; Councill, Judge.
Action by the Hilton Lumber Company against the Atlantic Coast Line Railroad Company. From a judgment in favor of plaintiff defendant appeals. Affirmed. Plaintiff sued for the recovery of $3,865.26, alleged to have been unlawfully demanded and paid defendant company on account of discriminating overcharges for shipment of logs over defendant's road from the 15th day of November, 1898 to the 30th day of April, 1901. Plaintiff alleged that between said dates, the defendant company, a common carrier unlawfully charged and demanded of plaintiff an unreasonable and discriminating rate of $2.50 per thousand feet for hauling its logs from Musteen's Crossing to the city of Wilmington, a distance of 39 miles, whereas during the said time, defendant charged other persons and corporations for shipment of logs for a like distance to said city, only $2.10 per thousand. That, after protest against such discrimination, plaintiff applied to the corporation commission of the state, whereupon said commission ordered defendant to reduce its rate to $2.10 per thousand feet. That between said dates plaintiff shipped logs from said crossing to Wilmington, aggregating 9,663,160 feet for which it paid at the rate of $2.50 per thousand feet, the sum of $24,157.90. That the amount which should have been paid at $2.10 per thousand feet would have been $20,292.64, the difference between said amounts being $3,865.26. The plaintiff demanded payment of said amount, etc. Defendant admitted the plaintiff had paid the sum named for hauling logs between said points, but denies that same was either unreasonable or discriminating. Defendant denied that the rate of $2.10 per thousand feet was a reasonable or proper rate for carrying plaintiff's logs and says there was a substantial difference, both in conditions and circumstances, between logs shipped over its road at $2.10 per thousand feet and those shipped by plaintiff at $2.50 per thousand feet. That the $2.10 rate applied only to mills to which logs were shipped and from which it was afterwards reshipped in the form of lumber or its manufactured products. The other material allegations were denied. After the pleadings were read, the defendant moved ore tenus to dismiss the action upon the ground that it did not state a cause of action upon which plaintiff was entitled to recover, in that it did not set forth the exact dates of the shipments of the logs, which it claimed to have shipped over defendant's road and did not state that at the same dates and times the defendant was charging, collecting, and receiving from other persons a lower rate of freight for the same kind of shipments. Motion overruled, and defendant excepted. Defendant admitted its liability to plaintiff for the sum of $91.98, being the excess of $2.10 per thousand feet collected from plaintiff on shipment of logs from March 20, 1901, to April 30, 1901, the commission having fixed the rate at $2.10 on March 20, 1901, and defendant not having observed or adopted it in shipment of plaintiff's logs until April 30, 1901. At the conclusion of the plaintiff's evidence defendant demurred and renewed its motion to nonsuit the plaintiff. Motion denied, and defendant excepted. The court upon the trial submitted the following issues to the jury: At the conclusion of the entire evidence defendant renewed its motion for judgment as of nonsuit, which was denied and defendant excepted. Verdict was rendered upon the issues, and there was judgment for plaintiff. Defendant excepted, and appealed.
Junius Davis, for appellant.
Rountree & Carr, for appellee.
CONNOR J. (after stating the facts).
In the complaint some reference is made to an agreement entered into by the Wilmington & Weldon Railroad Company, to whose rights and contracts the defendant succeeded, and the predecessor of plaintiff in regard to hauling logs. The cause was heard and determined, as appears from the record, upon the sole question whether during the periods named in the complaint defendant company demanded and received payment from plaintiff a rate of freight in excess of that charged other persons or corporations for the same service under substantially similar conditions. The learned counsel in his brief says: The defendant denied the allegations upon which plaintiff's alleged cause of action is founded. It says further, that assuming the law to be as contended by the plaintiff it has not shown by any competent testimony that, at the date of shipments made over its road, defendant was charging and receiving from other persons a less rate of freight than that charged plaintiff for a like service in the transportation of like traffic contemporaneous in point of time and under substantially similar circumstances. The record contains exceptions to the ruling of his honor, presenting every phase of these controverted questions. It will be observed that the foundation of plaintiff's claim is not, that the rate charged plaintiff was, except in so far as it was related to the lower rate charged, unreasonable. The gravamen of the complaint is that the rate was discriminating and by reason thereof, unlawful. Plaintiff claims that it has a right to demand of defendant (1) that it haul the logs at a reasonable rate; (2) that it haul them at the same rate charged other persons for hauling logs over the same distance, at the same time, and under substantially similar circumstances. This right, it charges, defendant has infringed and thereby demanded and received for hauling its logs, between the dates named, the amount sued for, in excess of the amount which it was entitled to receive; and in good conscience, defendant should repay this amount and it sues as for money had and received to its use. The agreement referred to in the complaint is eliminated by plaintiff's averment that it is suing to enforce its right at common law, of which section 3749 of the Revisal of 1905 is but declaratory, to have equality in rates, etc. It will be observed, as said by Clark, C.J., in Lumber Co. v. Railroad Co., 136 N.C. 479, 487, 48 S.E. 813, 816, that this statute is substantially like that portion of the English "Traffic Act," known as the ""Equality Clause" and the "Interstate Commerce Act." These and similar statutes are said by many of the courts to be but declaratory of the common law, which required all public carriers to serve all persons at reasonable rates and upon equal terms under similar circumstances. However that may be, the fundamental purpose underlying all of this legislation both in England and this country, is, as said by Mr. Justice White, in Railroad Co. v. Interstate Commission, 26 S.Ct. 272, 50 L.Ed. 515, that:
Referring to provisions in charters of railway companies having for their purpose the guaranty that all persons should have equality of right in the use of facilities afforded by common carriers, Tindall, C.J., in Parker v. Great Western R. R Co., 49 E. C. L. 252, 287, says: "Acts passed under such circumstances should be construed strictly against the parties obtaining them, but liberally in favor of the public." Blackburn, J., in Great Western R. Co. v. Sutton, L. J. 1869 N. S. 38, 177, after reviewing the several acts of Parliament on the subject, says: "I think the construction of the proviso for equality is equally clear and is that the company may, subject to the limitations in their special acts, charge what they think fit, but not more to one person than they do, during the same time, charge to others under the same circumstances." The evil intended to be remedied is the prevention of unjust discrimination, or, to put the proposition affirmatively, to secure to every person constituting a part of the public, an equal and impartial participation in the use of the facilities which the carrier is capable of affording and which it is its duty to afford. It is an elementary rule that statutes shall be so construed as to repress the evil and advance the remedy. We held in this case--Railroad Discrimination Case, 136 N.C. 479, 48 S.E. 813--that upon the facts set out in the complaint and substantially the same testimony, that the discrimination was unlawful. In other words, that defendant could not rightfully charge the plaintiff $2.50...
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