Reid & Beam v. Southern Ry. Co.

• Decision Date: 25 May 1909
• Parties: REID & BEAM v. SOUTHERN RY. CO.
• Court: North Carolina Supreme Court

64 S.E. 874

150 N.C. 753

REID & BEAM v. SOUTHERN RY. CO.

Supreme Court of North Carolina

May 25, 1909

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

Action by Reid & Beam against the Southern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Brown and Walker, JJ., dissenting.

The federal Supreme Court is the final authority upon the validity of regulations affecting interstate commerce.

See also, 63 S.E. 112.

There was evidence, on the part of plaintiffs, tending to show That on or about June 25, 1906, the plaintiff firm, having received an order for a car load of shingles, from one James Haddox at Scottsville, Tenn., applied to P. B. Gunnels, who was then agent of defendant company at Rutherfordton, N. C for a car. The same was furnished and loaded with the shingles by plaintiffs on July 2d, shipping instructions given, prepayment of freight tendered, and bill of lading demanded. That the agent of defendant refused to give bill of lading, or ship the goods, assigning for reason that he did not know where Scottsville, Tenn., was, nor the rate thereto. Plaintiffs demanded that the goods be shipped, and told the agent they would prepay any additional amount found to be due, and requested that when the agent got ready to ship to phone to plaintiffs and they would come over and pay the freight due. That defendant's agent failed and refused to ship the shingles till July 17th, when one Castle came to take over the agency, and being told, on inquiry of plaintiffs, about the car load of shingles and what the trouble was, he asked for shipping instructions, which were given, to James Haddox, Scottsville, Tennessee, and on July 19th the freight was paid, the bill of lading given, and shingles shipped as directed, arriving at their destination without further let or hindrance. Plaintiffs further testified that they had received no pecuniary injury by reason of the delay, that Gunnels still had charge of the depot when the shingles were shipped, and that he left about that time, and Castle took charge.

There was evidence, on the part of defendant: That Scottville, Tenn., was an industrial siding on the Knoxville & Augusta Road, 8 or 10 miles out of Knoxville, Tenn., established for the convenience of persons shipping brick from that point; that there was no depot or regular agent there, but goods were rebilled to that point at Rockford, a regular station on the same road, some two miles distant. One W. P. Hood, testifying for defendant, stated: That he was superintendent of the Knoxville & Augusta Road, and that this road was operated as an independent line; that there was no such place on that road as Scottsville, but an industrial siding called "Scottville," at the point indicated, a flag station 8 or 10 miles out from Knoxville; and that bills of lading for goods to and from that point were made out at Rockford, a regular station some two miles distant. On cross-examination the witness stated that his remittances from the operation of the road were made to the treasurer of the defendant company, that his reports were made to the auditor of such company, and that, since the consolidation of the East Tennessee & Virginia Railroad with the Old Richmond & Danville, the defendant company had paid all the employés of the Knoxville and Augusta Road their salaries.

The court below charged the jury, in part, as follows: "The burden is on the plaintiffs to show, by the greater weight of the evidence, that the defendant is indebted to plaintiffs. This suit is brought to recover penalty for refusal on the part of the defendant, Southern Railway Company, to receive a car load of shingles for shipment to James Haddox, Scottville, Tenn. In order to entitle plaintiffs to recover, it is necessary for the jury to find from the evidence, by the greater weight thereof: First, that the defendant is a common carrier-that is admitted. Second, that the plaintiffs tendered the car load of shingles for shipment. And, third, that defendant refused to receive the same for shipment. If the jury finds from the evidence, by the greater weight thereof, first, that the plaintiffs, Reid & Beam, tendered the car load of shingles to Gunnels, the defendant's agent at Rutherfordton, and furnished him with shipping directions and offered to prepay the freight and demanded a bill of lading, and that the plaintiffs demanded that the car be shipped, then the plaintiffs would be entitled to recover, unless you find from the evidence that the defendant failed and refused to ship by reason of facts intervening which defendant, by the exercise of reasonable care, could not have prevented or overcome. The defendant contends that the agent did not know where Scottsville was, and did not know the freight rate, and that therefore defendant is excused. If you find from the evidence, by the greater weight thereof, that Scottsville or Scottville was a flag station on a branch road under control of defendant company, then it was the business of the agent of defendant company to know where it was, and to know the freight rate to that point, or if you so find that the plaintiffs told the agent that Scottsville was on a branch road running out from Knoxville, and on the Knoxville & Augusta Railroad and some seven or eight miles from Knoxville, and that statement was true, and further so find that by the exercise of reasonable care and diligence on the part of the agent he could have ascertained where the place was, and the rates, it was his duty to do so, and failure on his part to exercise such reasonable care would not excuse the defendant company. If you find from the evidence, by the greater weight thereof, that defendant refused on July 2d to receive the car simply on the ground that the agent did not know and could not, by the exercise of reasonable care, have ascertained the locality and rates, and you further find from the evidence, by the greater weight thereof, that the failure to ship up to the 19th was on the same ground and no other, then the plaintiffs would be entitled to recover $50 a day as a penalty for such failure from 14 days, this would exclude the day of shipment and also exclude the Sundays included between the dates, which would be $700."

The jury rendered a verdict as follows: "Is the defendant indebted to the plaintiffs for the unlawful failure to receive a car load of shingles to be transported to Scottsville, Tenn., as alleged, if so in what sum? Answer: $350." There was judgment on the verdict for plaintiffs, and defendant excepted and appealed; and, having made 18 exceptions duly noted in the record, under different forms of statement, assigns for error: "(1) That the statute in question (Revisal 1905, § 2631) is unreasonable and oppressive, and in conflict with the fourteenth amendment to the federal Constitution. (2) That, as applied to interstate commerce, the same is in conflict with article 1, § 8, cl. 3, of said Constitution: (a) As an unlawful attempt to regulate commerce. (b) And on the facts presented here as amounting to distinct burden upon it."

W. B. Rodman and Jas. M. Carson, for appellant.

HOKE J.

The validity of these penalty statutes has been before the court for consideration in many recent cases, and in Efland v. Railroad, 146 N.C. 138, 59 S.E. 355, this being a decision on a statute of kindred nature, the court, in speaking to the power of a government to enact regulations of this character, said: "The right of the state to establish regulations for these public service corporations, and over business enterprises in which the owners, corporate or individual, have devoted their property to a public use, and to enforce these regulations by appropriate penalties, is now and has long been too firmly established to require or permit discussion"-citing: Harrill's Case, 144 N.C. 532, 57 S.E. 383; Stone's Case, 144 N.C. 220, 56 S.E. 932; Walker's Case, 137 N.C. 168, 49 S.E. 84; McGowan's Case, 95 N.C. 417; Branch's Case, 77 N.C. 347; Railway v. State of Florida, 203 U.S. 261, 27 S.Ct. 109, 51 L.Ed. 175; Railway v. Hums, 115 U.S. 513, 6 S.Ct. 110, 29 L.Ed. 463; Mobile v. Kimball, 102 U.S. 691, 26 L.Ed. 238; Munn v. Illinois, 94 U.S. 113, 24 L.Ed. 77. The opinion then quotes from that of Associate Justice Fields, in Hums' Case, 115 U.S. 513, 6 S.Ct. 110, 29 L.Ed. 463, both on the right to enact such statutes and the necessity for their proper enforcement, as follows: "The power of the state to impose fines and penalties for a violation of its statutory requirements is coeval with government; and the mode in which they shall be enforced, whether at the suit of a private party or at the suit of the public, and what disposition shall be made of the amounts collected, are merely matters of legislative discretion. The statutes of nearly every state of the Union provide for the increase of damages where the injury complained of results from the neglect of duties imposed for the better security of life, and property, and make that increase in many cases double, and in some cases treble, and even quadruple, the actual damages." And proceeds further: "And the right to establish such regulations for certain classes of pursuits and occupations, imposing these requirements equally on all members of a given class, has been made to rest largely in the discretion of the Legislature. Tullis v. Railway, 175 U.S. 348, 20 S.Ct. 136, 44 L.Ed. 192; Insurance Co. v. Daggs, 172 U.S. 562, 19 S.Ct. 281, 43 L.Ed. 552; Magoun v. Savings Bank, 170 U.S. 286, 18 S.Ct. 594, 42 L.Ed. 1037."

And the very statute in question here (Revisal 1905, § 2631) has been approved and upheld in several of these cases as a just and reasonable exercise of the power indicated, and both as to interstate and intrastate commerce. Garrison...