Stone & Co v. Atl. Coast Line Ry. Co

• Decision Date: 03 April 1907
• Citation: 56 S.E. 932,144 N.C. 220
• Court: North Carolina Supreme Court
• Parties: STONE & CO. v. ATLANTIC COAST LINE RY. CO.

144 N.C. 220

56 S.E. 932

STONE & CO.

v.ATLANTIC COAST LINE RY. CO.

Supreme Court of North Carolina.

April 3, 1907.

1. Justices of the Peace — Pleading — Amendment.

Revisal 1905, § 1467, provides that no process or other proceeding before a justice shall be quashed for the want of form; and that the court in which any such action shall be pending shall have power to amend any warrant, process, etc., either in form or substance, for the furtherance of justice. In an action in a justice's court to recover the penalty for the failure to transport freight within a reasonable time, as allowed by Revisal 1905, § 2632, the warrant and complaint simply alleged that the claim was "due by penalty." Held, that an amendment to show the section of the Code under which the penalty was claimed was properly allowed.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 31, Justices of the Peace, §§ 328-330.]

2. Carriers—Carriage of Goods—Regulation—Time for Shipment—Police Power.

Revisal 1905, § 2632, declares that it shall be unlawful for any railroad company to neglect to transport within a reasonable time any goods received for shipment and billed to or from any place in the state, unless otherwise agreed between the parties or unless the same be destroyed, under a penalty. It is further provided that the company shall be deemed to have transported the goods in a reasonable time if it has done so within the ordinary time required for such transportation, and that a delay of two days at the initial point, and 48 hours at one intermediate point for each 100 miles or fraction over which goods are to be transported, shall be held to be prima facie reasonable, and a failure to transport within such time shall be held prima facie unreasonable. Held, that the statute was a legitimate exercise of the police power of the state, and reasonable in its provisions.

3. Carriers — Carriage of Goods — Actions for Delay—Aggrieved Party.

Revisal 1905, § 2632, declares that it shall be unlawful for any railroad company to neglect to transport freight within a reasonable time to or from any place in the state, and for a violation of the duty imposed a penalty is given "to the party aggrieved." In an action to recover the penalty by the consignors of a shipment of hay, one of the plaintiffs testified that the consignees were anxious for the hay, and that they paid in full for it after delivery. Held, that the consignees, and not the consignors, were the parties aggrieved, within the statute, and that the consignors were without right to sue for the delay.

Clark, C. J., dissenting in part.

Appeal from Superior Court, New Hanover County; E. B. Jones, Judge.

Action by B. O. Stone & Co. against the Atlantic Coast Line Railway Company. From a judgment for plaintiff, defendant appeals. Reversed, and judgment directed.

This was an action prosecuted by the plaintiffs for the recovery of the penalty Incurred by defendant for failure to transport freight within a reasonable time, pursuantto section 2632, Revisal 1905. The action was Instituted In a justice's court, and brought by appeal in the superior court of New Hanover. The plaintiffs introduced a bill of lading issued by defendant at Wilmington, N. C., showing shipment by Stone & Co. to Williamson & Brown Sand & Lumber Co., at Cerro Gordo, N. C, for one car load of hay. B. O. Stone, one of the plaintiffs, testified: "Cerro Gordo is on the line of Atlantic Coast Line Railroad Company, and about 90 miles from Wilmington. We shipped this car of hay April 20, 1906, to Williamson & Brown Sand & Lumber Company. They were anxious for the hay. In consequence of information, I went to the Atlantic Coast Line Railroad depot and made inquiry of Mr. Graham, chief clerk to local freight agent. I was referred by him to freight agent. He said that he had looked up this car, and found it in the yard; it was out of repair and would have to be repaired, and he would endeavor to get it off next day. This was May 10, 1906. * * *" The Williamson & Brown Sand & Lumber Company paid Stone & Co. In full for the hay after delivery. There was no other evidence. Defendant moved for judgment of nonsuit. Motion denied. Defendant excepted. The court instructed the Jury to find for plaintiffs, explaining to them the method of calculating the number of days for which plaintiffs were entitled to recover. Defendant excepted. Judgment and appeal.

Davis & Davis, for appellant.

Thos, D.Meares, Jr., for appellee.

CONNOR, J. (after stating the case). The motion for judgment of nonsuit entitles the defendant to urge In this court any view of the plaintiff's testimony which Involves his right to maintain the action. It was therefore open to defendant to insist in this court, as it does in the well-considered and interesting brief of counsel, (1) that the statute, upon the provisions of which this action is based, is invalid for the reasons assigned; (2) that, if valid, the plaintiffs do not bring themselves within its terms. Other questions are raised by exceptions to rulings of his honor during the trial. These we do not deem it necessary to discuss, as, in our opinion, the appeal must be disposed of upon the motion for judgment of nonsuit. It may not be improper, however, to say that we think his honor had the power, and properly exercised it, to allow the amendment to the warrant, Revisal 1905, § 1467. The original warrant was defective In that it neither stated the facts upon which the penalty was alleged to have accrued, nor made any reference to the statute. To simply say that the amount claimed is "due by penalty" is insufficient. The complaint was in the same language. Scroter v. Harrington, 8 N. C. 192; Wright v. Wheeler, 30 N. C. 184. The complaint, which In the justice's court may be oral, should, at least inform the defendant what omission of duty he is charged with or under what statute the penalty is claimed. The defendant insists that the statute is invalid because it is not within the police power vested in the Legislature. It concedes that this court has recognized the validity of similar statutes imposing penalties upon common carriers for failing to perform their public duty, but says that the question was not considered, and that in the last case (Walker v. Railroad, 137 N. C. 168, 49 S. E. 84) the reference to it was obiter. In Branch v. Railroad, 77 N. C. 347, being the first case in this court in which an action was brought to recover a penalty for failing to ship goods, Rodman, J., discusses the validity of the statute, and holds that it is clearly within the police power—citing Munn v. Illinois, 94 U. S. 113, 24 L. Ed. 77. This case was followed in Katzenstein's Case, 84 N. C. 694; Keeter's Case, 86 N. C. 348; Whitehead's Case, 87 N. C. 260; McGowan's Case, 95 N. C. 417; and Walker v. Railroad, 137 N. C. 168, 49 S. E. 84, and many others. The validity of such legislation has been uniformly sustained in state and federal courts, and Mr. Rose, In his exhaustive note to Munn's Case, says that the question is "too well settled to be longer the subject of controversy." Notes, vols. 9-26. That certain expressions in the opinion In that case have been criticised, and to some extent modified, is conceded, but the fundamental principle upon which the power of the state to regulate the conduct of all public service corporations in the discharge of their duties, and prescribe penalties for failure to discharge them, is founded, is not only unshaken, but more firmly established, by each declaration of the courts Freund, Police Power, discusses the question in all of its aspects. Defendant insists that conceding the power to rest in the state, the statute (Revisal 1905, § 2632) imposes unreasonable burdens on the carrier, and urges upon our attention the case of H. & T. C. Ry. v. Mayes, 201 U. S. 321, 26 Sup. Ct. 491, 50 L. Ed. 772. We think that counsel inadvertently fail to note the distinction between the statute there under discussion and that under which this action is prosecuted.

The point upon which the decision of that case rested was that the statute "when applied to interstate commerce was void as a violation of the commerce clause of the federal Constitution." It is true that Justice Brown says that the statute upon which the action is brought "is not far from the line of police regulation, " and expresses the opinion that it falls on the "wrong side" of the line. The decision is confined to its interference with interstate commerce. There the stock was shipped from a point in Texas to Red Rock, Okl. It may be that if the court was called upon to pass upon the validity of the statute as a police regulation, it would have held that by giving to it a "reasonable construction, " thereby avoiding the difficulties and hardships pointed out it would havebeen upheld, as this court did in Whitehead v. R. R., 87 N. C. 255. However this may be, the statute under which this action is brought does not impose any "hard and fast rule" on the carrier. It has always been the common-law duty of a carrier to receive and safely transport and deliver, within a reasonable time, all freight tendered it for that purpose at a proper time and place and in proper condition. In respect to the safe delivery, it is an insurer except "against the acts of God and the King's enemy"; but as to the time of delivery, the measure of liability is defined to be "seasonable." Boner v. Steamboat Co., 46 N. C. 211; Foard v. Railroad, 53 N. C. 238, 78 Am. Dec 277; Alexandre v. Railroad, 143 N. C.——, 56 S. E. 697. The latest work on the subject says: "The general rule in reference to the liability of a carrier for delay in the transportation and delivery of goods is that it is required to exercise due care and diligence to guard against delay and to forward the goods to their destination with all convenient despatch and deliver them promptly." Moore on Carriers, 238. Another author of standard authority states the rule with the additional words "with such...