Murphy Hardware Co v. Southern Ry. Co

• Decision Date: 01 February 1909
• Citation: Murphy Hardware Co v. Southern Ry. Co, 64 S.E. 873, 150 N. C. 703, 17 Ann Cas. 481 (N.C. 1909)
• Court: North Carolina Supreme Court
• Parties: MURPHY HARDWARE CO. v. SOUTHERN RY. CO.

64 S.E. 873

(150 N. C. 703)

MURPHY HARDWARE CO.

v.SOUTHERN RY. CO.

Supreme Court of North Carolina.

May. 21, 1909.

Carriers (§ 20^*)—Regulations—Statutory Penalty—Failure to Receive Freight-Defenses.

Revisal 1905, § 2631, requires every railroad to receive all articles for transportation whenever tendered, and imposes a penalty of $50 for each day it refuses to receive freight. Section 2632 imposes a penalty for refusing to transport freight within a reasonable time and requires shipments to start from the initial point within two days after the freight is received. Held, that a carrier could plead any legal excuse to avoid the penalty for failure to receive freight, and, if a carrier was unable to transport cattle because its motive power was tied up by a strike, it would not be liable for the statutory penalty for its refusal to receive the stock.

[Ed. Note.—For other cases, see Carriers, Dec. Dig. § 20.*]

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

Action by the Murphy Hardware Company against the Southern Railway Company. From a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered.

Moore & Rollins, W. B. Rodman, and Dil-lard & Bell, for appellant.

E. B. Norvell, for appellee.

BROWN, J. The facts as set out in the record present this case: On February 4, 1907, the plaintiff instituted eight separate actions against the defendant to recover the sum of $2,000 penalties in each action (total $16,000) under section 2631, Revisal N. C. 1905, for failure of defendant to receive a drove of 80 head of cattle, tendered to the defendant at Murphy, N. G, for shipment to Richmond, Va. The eight actions came on for hearing at the spring term, 1908, of the superior court of Cherokee county, and for convenience and by consent were consolidated by his honor, O. H. Guion, Judge. Upon the admissions contained in the record, his honor signed judgment in the consolidated case in favor of the plaintiff and against the defendant for $200; it being one penalty of $50 for each day for the four days the defendant refused to receive the entire lot of cattle for shipment. The defendant demanded a trial by jury upon the issues raised by the pleadings and excepted to the refusal of the court to submit said issues and also to the action of the court in signing judgment for $200, and further moved to dismiss said action for the reason that upon the face of said complaint it appeared that the court was without jurisdiction to try and determine said cause, for that the same was an interference with interstate commerce, and for that the statute providing such penalty upon interstate shipments was contrary to the Constitution of the United States. The court rendered the judgment in the record from which the defendant appealed.

The statute which imposes the penalty sued for is section 2631 of the Revisal of 1905, and reads as follows: "Agents or other officers of railroads and other transportation companies whose duty it is to receive freights shall receive all articles of the nature and kind received by such company for transportation whenever tendered at a regular depot, station, wharf or boat landing, and every loaded car tendered at a side track, or any warehouse connected with the railroad by a siding, and shall forward the same by the route selected by the person tendering the freight under existing laws; and the transportation company represented by any person refusing to receive such freight shall forfeit and pay to the party aggrieved the sum of fifty dollars for each day said company refuses to receive said shipment of freight, and all damages actually sustained by reason of the refusal to receive freight. If such loaded car be tendered at any siding or warehouse at which there is no agent, notice shall be given to an agent at nearest tegular station at which there is an agent that such car is loaded and ready for shipment." In its answer the defendant avers that it was prevented from furnishing cattle cars to the plaintiff on account of a strike of the machinists on its road, numbering...