Southern Ry. Co. v. Moore

• Decision Date: 17 February 1910
• Parties: SOUTHERN RY. CO. v. MOORE.
• Court: Georgia Supreme Court

67 S.E. 85

133 Ga. 806

SOUTHERN RY. CO. v. MOORE.

Supreme Court of Georgia

February 17, 1910

Syllabus by the Court.

A shipper, who may have sustained damages by reason of a breach of the common-law duty of a railroad company, as a common carrier, to furnish cars for the transportation of freight within a reasonable time, was not prevented by the act of 1905 (Acts 1905, p. 120) from instituting a common-law action for damages, instead of pursuing the remedy provided by that act, touching the fixing by reasonable rules of the Railroad Commission of a time within which cars should be furnished after written application and "the penalty per day per car" to be paid by the company for failure to supply them accordingly.

The suit in the present case being one to recover damages against a common carrier for a breach of its common-law duty as to the furnishing of cars and transporting freight without unreasonable delay, the petition was not subject to general demurrer.

Error from Superior Court, Pike County; E. J. Reagan, Judge.

Action by S. H. Moore against the Southern Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.

For every right there shall be a remedy, and every court having jurisdiction of the one may, if necessary, frame the other.

Moore brought suit against the Southern Railway Company, alleging in his petition and the amendment thereto, in brief, as follows: The defendant is a common carrier, and has an office, agent, and place of business at Molena, Pike county on its line of road, which is a regular station for receiving and delivering freight. He sold certain lumber, amounting to 10,819 feet, to the King Lumber Company, at $15 per thousand feet, to be shipped to Atlanta, and delivered "f. o. b cars at Molena." The price named was the fair market value of the lumber at that time and place. He began delivering the lumber to the railway company for shipment on November 8, and continued the delivery up to November 20 1906, when it was completed. When he carried the lumber to Molena to be shipped, the company, by its agent at that point, showed and directed him where to place it on the company's right of way; and he delivered it as so directed, and instructed the defendant how and to whom to ship it, stating to the agent that he had sold it "f. o b. the cars at Molena," and could not collect for it until it was loaded on the cars, and the company promised to furnish the cars as soon as possible. "Said railway company received and took possession and control of said lumber so delivered and received by it for shipment." Though called on at the time of delivery, and repeatedly since then, to furnish cars upon which to load the lumber, "said the Southern Railway Company utterly neglectly [negligently] failed and refused" to do so, and "said company never has furnished him any cars, and said lumber is yet in possession of said Southern Railway Company, lying on its right of way at Molena, where petitioner delivered the same. *** Since the date it was so delivered and lying on said company's right of way, since 20th November, 1906," lumber of that class has depreciated in market value 50 per cent., and this lumber not being stacked, and being without care or protection, at the time of the commencement of the suit it has no market value, and is a total loss to plaintiff, as a result of the refusal and failure of the defendant to furnish cars on which to load it, as it was the company's duty to do. (The suit was brought on March 6, 1908.) He did not make any written request for cars before delivering the lumber, because he was not aware of any law or rule of the Railroad Commission requiring it, and it was not the custom of the company to so require; but he delivered this lumber and gave shipping directions, just as he had been doing at that station regularly for four or five months immediately before that time. Defendant had never demanded or notified him of any necessity to make application in writing for cars or give written instructions as to shipping; nor did the defendant give as a reason for not furnishing cars that the application or instructions were not in writing, but told him it would furnish the cars as soon as posible. He did not pay the freight in advance, or tender it. This was not demanded, nor was it the reason for said company's refusal to furnish cars. Damages were laid at $168.28. The defendant demurred to the petition. The demurrer was overruled, and defendant excepted.

Charlton E. Rattle and Howell Hollis, for plaintiff in error.

J. Y. Allen, for defendant in error.

LUMPKIN, J. (after stating the facts as above).

The principal question in this case is whether the remedy provided by the act of August 23, 1905 (Acts 1905, p. 120), and the rule of the Railroad Commission in pursuance thereof, operate to repeal or abrogate the common-law right of a shipper to bring an action against a railroad company as a common carrier for a negligent failure or refusal to furnish cars for the transportation of freight within a reasonable time after notice, or whether they furnish a cumulative remedy, so that a shipper may pursue the one remedy or the other. The second section of the act reads as follows: "That whenever a shipper or consignor shall require of a railroad company the placing of a car or cars to be used in car load shipments, then, in order for the consignor or shipper to avail himself of the forfeitures or penalties prescribed by the rules and regulations of said Railroad Commission, it must first appear that such shipper or consignor made written application for said car or cars to said railroad: Provided further, that such Railroad Commission shall, by reasonable rules and regulations, provide the time within which said car or cars shall be furnished after being ordered as aforesaid, and the penalty per day per car to be paid by said railroad company in the event such car or cars are not furnished as ordered, and provided further, that in order for any shipper or consignor to avail himself of the penalties provided by the rules and regulations of said Railroad Commission, such shipper or consignor shall likewise be subject, under proper rules to be fixed by said commission, to the orders, rules, and regulations of said Railroad Commission."

1. In 26 Am. & Eng. Enc. Law, 671, it is said: "A statute instituting a new remedy for an existing right does not take away a pre-existing remedy, without express words or necessary implication; the new remedy is cumulative, and either may be pursued. But when the statute gives a right or remedy which did not exist at common law, and provides a specific method of enforcing it, the mode of procedure provided by the statute is exclusive and must be pursued strictly. *** Where a statute which creates a duty or liability provides no form of action or mode by which it may be enforced, the right to an appropriate action is implied in favor of the party in whose behalf the duty or liability arises." Numerous authorities are cited in the notes in support of the text. In President, etc., of Farmers' Turnpike Road v. Coventry, 10 Johns. (N. Y.) 389, it was held that though a penalty was provided by a turnpike act for injuring or destroying toll gates, yet the company could bring an action of trespass at common law for such injury to their property. In Maine, by the act of 1821, it was declared that if any person or persons should willfully, maliciously, or contrary to law take up, remove, break down, dig under, or otherwise injure any part of a certain canal (previously named), or any work connected with or appertaining thereto, such person for such offense should forfeit and pay to such corporation a sum not less than $50, nor more than $5,000, and should further be liable to indictment for the trespass. It was held that this act did not take away from the corporation the common-law remedy of trespass quare clausum fregit. Cumberland & Oxford Canal Corporation v. Hitchings, 59 Me. 206. In Hill v. Missouri Pacific Ry. Co., 49 Mo.App. 520, it was held that a statute providing for the recovery of "single damage" against railroad companies for the killing of stock did not provide an exclusive remedy, but was cumulative, and did not displace the common law in the situation to which it applied. In Dygert v. Schenck, 23 Wend. (N. Y.) 445, 35 Am.Dec. 575, it was held that a statute providing for treble damages under certain circumstances did not prevent an ordinary action for damages to redress the injury. In Richardson v. People's Life & Accident Ins. Co. (Ky.) 92 S.W. 284, the Court of Appeals of Kentucky held that, when a statute gives a new right and prescribes an adequate remedy for its enforcement, the prescribed remedy is exclusive, but where a right exists at law or in equity a statute giving a new remedy gives a cumulative remedy merely. See, also, People v. Craycroft, 2 Cal. 243, 56 Am.Dec. 331; Troy v. Cheshire R. Co., 23 N.H. 83, 55 Am.Dec. 177; Swarthout v. New Jersey Steamboat Co., 48 N.Y. 209, 8 Am.Rep. 541; Lang v. Scott, 1 Blackf. (Ind.) 405, 12 Am.Dec. 257; Crittenden v. Wilson, 5 Cow. (N. Y.) 165, 15 Am.Dec. 462; Jordan & Skaneateles Plank Road Company v. Morley, 23 N.Y. 552; Donnell v. Jones, 13 Ala. 490, 48 Am.Dec. 59; Narramore v. Cleveland, etc., Ry. Co., 96 F. 298, 37 C.C.A. 499, 48 L.R.A. 68.

There is nothing in the decisions of Jones v. Stewart, 117 Ga. 977, 44 S.E. 879, and Brewer v. Nutt, 118 Ga 257, 45 S.E. 269, in conflict with the current of authority above indicated. The former case arose under an act of the Legislature which required dealers in "futures" to register and pay a license tax or occupation tax, making it a misdemeanor to engage in that business without having done so, and providing that one-half...