Reid v. Southern Ry. Co.
| Decision Date | 30 November 1910 |
| Parties | REID et ux. v. SOUTHERN RY. CO. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Mecklenburg County; Webb, Judge.
Action by D. L. Reid and wife against the Southern Railway Company. From a judgment for plaintiffs, defendant appeals. Affirmed.
It is presumed that a railroad company is carrying on its business under the authority of law.
On September 17, 1907, the feme plaintiff tendered to the defendant at its freight depot in Charlotte, N. C., a lot of household goods for shipment to Davis, W. Va., a station on the West Maryland Railroad. She offered to prepay the freight charges, and asked for bill of lading. The defendant declined to receive said goods for shipment, as requested. Again, on the 18th, 19th, 20th, 21st, and 23d of September, she renewed her requests to the defendant to receive said freight for shipment, as above stated; but the defendant refused to accept same until September 23, 1907, when it informed the plaintiff that the amount necessary to prepay the freight was $34.08. The plaintiff thereupon paid the same, and the defendant then accepted said freight for shipment, and issued a bill of lading therefor. On September 17th, when the plaintiff first tendered the goods and demanded the bill of lading, the defendant's agent informed the plaintiff that there was no established rate for shipment to Davis, W. Va and that none had been filed or published, and that he had no authority to receive said goods. Said agent on that day wired the proper authority to obtain the freight rate and for permission to receive said shipment. On September 23d he received such information and permission, and thereupon accepted the freight and issued a bill of lading therefor. At the date of said tender, on September 17th, there was a telegraph office at Davis, W.Va. The plaintiff remained at Charlotte from September 17th to September 23d waiting the shipment of said household goods. The above facts were agreed, and it was further agreed that the plaintiff's damage, if she is entitled to recover any, by reason of said delay in Charlotte, was $25. Upon the facts agreed, the judge rendered judgment for $250, being penalty of $50 per day for refusal to accept freight tendered for shipment on each of five different days, and $25 compensatory damages, and the cost of this action. The defendant appealed.
W. B Rodman, for appellant.
Stewart & McRae, for appellees.
The defendant contends that Revisal 1905, § 2631, is invalid, so far as it undertakes to impose a penalty on a common carrier for refusing to receive a shipment of freight from one state to another, but concedes that this court has heretofore decided this point against it. In Lumber Co. v Railroad, 152 N.C. 72, 67 S.E. 167, 168, it is said: ' The court then cited Bagg v. Railroad, 109 N.C. 279, 14 S.E. 79, 14 L. R. A. 596, 26 Am. St. Rep. 569, and Currie v. Railroad, 135 N.C. 536, 47 S.E. 654, both of which had been cited and reaffirmed by Walker, J., in Walker v. Railroad, 137 N.C. 168, 49 S.E. 84. In Twitty v. Railroad, 141 N.C. 355, 53 S.E. 957, Brown, J., held that, where the agent refused to give the bill of lading because he did not know whet the freight rates were, this was a refusal to receive for transportation, and the carrier was responsible for the penalty, even though he put the goods in the warehouse. In Harrill v. Railroad, 144 N.C. 532, 57 S.E. 383, Walker, J., held that a penalty for failure to deliver freight was valid though the freight was interstate. There the penalty was incurred after transportation had ceased. Here the penalty occurred before the transportation had been begun, and before the freight was received or accepted for transportation. Reid v. Railroad was again before the court (150 N.C. 753, 64 S.E. 874), and was reaffirmed by Hoke, J., citing Morris v. Express Co., 146 N.C. 167, 59 S.E. 667, 15 L. R. A. (N. S.) 983, which held "the state may, in the absence of express action by Congress or by the Interstate Commerce Commission, regulate for the benefit of its citizens local matters indirectly affecting interstate commerce," and cited as sustaining that position Railroad v. Flour Mill, 211 U.S. 612, 29 S.Ct. 214, 53 L.Ed. 352, which laid down the same proposition in a case which involved the right of the state court to compel a railroad company to place cars on a siding for the convenience of a flouring mill engaged in making shipments in interstate commerce. The above decisions were followed by Connor, J., in Garrison v. Railroad, 150 N.C. 575, 592, 64 S.E. 578, with a full review of the authorities and no dissent. In fact, the duty to receive freight "whenever tendered" was a common-law duty. Alsop v. Express Co., 104 N.C. 278, 10 S.E. 297, 6 L. R. A. 271, which was cited and approved in Garrison v. Railroad, 150 N.C. 582, 64 S.E. 578. Interstate commerce does not begin "until the articles have been shipped or started for transportation from one state to the other," was said by Bradley, J., in Coe v. Errol, 116 U.S. 517, 6 S.Ct. 475, 29 L.Ed. 715, citing In re Daniel Ball, 10 Wall. 565, 19 L.Ed. 999, which has since been cited with approval in Match Co. v. Ontonagon, 188 U.S. 94, 23 S.Ct. 266, 47 L.Ed. 394. The statutory enforcement, under penalty, of the common-law duty to accept freight "whenever tendered," is not within the scope or terms of any act of Congress. It is neither an interference with nor a burden upon interstate commerce.
The second point the defendant makes is that it could not receive for shipment freight going from one state to another, until the rates of freight to such points had been filed with the Interstate Commerce Commission, as required by the United States statute. The defendant's brief concedes that this point also has been held against him by this court. The act of Congress (Interstate Commerce Act Feb. 4, 1887, c. 104, § 6, 24 Stat. 380 [U. S. Comp. St. 1901, p. 3156]) provides: "Every common carrier, subject to the provisions of this act, shall file with the commission created by this act, print and keep open to public instruction schedules showing all the rates, fares and charges for transportation between different points on its own route, and between points on its own route and points on the route of any other carrier by railroad, by pipe line or by water, when a through route and joint rate have been established." If no through route and joint rate from Charlotte to Davis, W. Va., had been established, it was not therefore prohibited to the defendant to receive this freight. It cannot be expected that a freight rate to every railroad station in the Union from Charlotte must be established and published before the railroad can receive freight for any point outside this state, at Charlotte. The federal statute does not prohibit the receipt or forwarding of a single shipment, but forbids the carrier to "engage or participate in the transportation of passengers or property," interstate, without filing its rates. It is the business of a common carrier which the defendant is forbidden to exercise without filing its rates. The statute has no application to this case, where the defendant was carrying on such business, presumptively, at least, under the authority of law. Harrill v. Railroad, 144 N.C. 540, 57 S.E. 383. If, however, the defendant was in default in not having complied with the federal statute to establish and post its rates, this would not be a defense to its other default in failing to comply with its common-law duty to receive all freight when tendered, under penalty prescribed by a state statute.
Besides there was nothing which prevented the defendant from accepting the freight to be shipped to the end of its line, there to be delivered to other carriers to be transported to Davis, W.Va. This it actually did when it finally received this freight and gave its bill of lading therefor on September 23d. The bill of lading recites the receipt of the freight in good order, marked as...
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