Texas & P. Ry. Co. v. Taylor

• Decision Date: 13 March 1909
• Citation: 118 S.W. 1097
• Parties: TEXAS & P. RY. CO. v. TAYLOR.
• Court: Texas Court of Appeals

118 S.W. 1097

TEXAS & P. RY. CO. v. TAYLOR.

Court of Civil Appeals of Texas.

March 13, 1909.

Rehearing Denied April 10, 1909.

Appeal from District Court, Mitchell County; James L. Shepherd, Judge.

Suit by E. G. Taylor against the Texas & Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Modified and affirmed.

Ed. W. Smith and Wagstaff & Davidson, for appellant. Royall G. Smith, for appellee.

SPEER, J.

Appellee recovered judgment against appellant for a penalty of $1,975 for its failure to furnish cars upon his written order, under articles 4497-4502, Rev. St. 1895.

The first assignment of error, under which practically all the questions in the case may properly be discussed, complains of the court's refusal to direct a verdict for the defendant. So much of the statutes as are necessary to be set out in this case are as follows:

"Art. 4497. When the owner, manager or shipper of any freight of any kind shall make application in writing to any superintendent, agent or other person in charge of transportation, to any railway company, receiver or trustee operating a line of railway at the point the cars are desired upon which to ship any freight, it shall be the duty of such railway company, receiver, trustee or other person in charge thereof, to supply the number of cars so required, at the point indicated in the application within a reasonable time thereafter, not to exceed six days from the receipt of such application, and shall supply such cars to the persons so applying therefor, in the order in which such applications are made, without giving preference to any person: Provided, if the application be for ten cars or less, the same shall be furnished in three days; and provided further, that if the application be for fifty cars or more, the railway company may have ten full days in which to supply the cars.

"Art. 4498. Said application for cars shall state the number of cars desired, the place at which they are desired and the time they are desired: Provided, that the place designated shall be at some station or switch on the railroad.

"Art. 4499. When cars are applied for under the provisions of this chapter, if they are not furnished the railway company so failing to furnish them shall forfeit to the party or parties so applying for them the sum of twenty-five dollars per day for each car failed to be furnished, to be recovered in any court of competent jurisdiction, and all actual damages that such applicant may sustain.

"Art. 4500. Such applicant shall at the time of applying for such car or cars, deposit with the agent of such company one-fourth of the amount of the freight charge for the use of such cars, unless the said road shall agree to deliver said cars without such deposit. And such applicant shall, within forty-eight hours after such car or cars have been delivered and placed as hereinbefore provided, fully load the same and upon failure to do so, he shall forfeit and pay to the company the sum of twenty-five dollars for each car not used: Provided, that where applications are made on several days, all of which are filed upon the same day, the applicant shall have forty-eight hours to load the car or cars furnished on the first application, and the next forty-eight hours to load the car or cars furnished on the next application, and so on; and the penalty prescribed shall not accrue as to any car or lot of cars applied for on any one day, until the period within which they may be loaded has expired. And if the said applicant shall not use such cars so ordered by him, and shall so notify the said company or its agent, he shall forfeit and pay to the said railroad company, in addition to the penalty herein prescribed, the actual damages that such company may sustain by the said failure of the applicant to use said cars."

"Art. 4502. It shall be necessary for the party or parties bringing suit against any railroad company under the provisions of this law, to show by evidence that he or they had on hand at the time any demand for cars was made the amount of lumber, cotton, wool, hides, or other freight necessary to load the cars so ordered: Provided, that the provisions of this law shall not apply in cases of strikes or other public calamity."

Some of the reasons urged in support of the requested peremptory instruction go to the very validity of the statutes above quoted, and will therefore be considered first. The contention that the statutes authorizing the recovery of penalties against railroad companies for failure to furnish cars are contrary to the fourteenth amendment of the Constitution of the United States, because they make no provision for exempting the carrier from damages for failure under circumstances beyond its control, and hence amount to a taking of its property without due process of law, may be dismissed summarily by a reference to the decision in the case of Allen v. Tex. & Pac. Ry. Co., 100 Tex. 525, 101 S. W. 792, wherein our Supreme Court expressly repudiated such a construction, and gave to the statute a broader and more liberal interpretation, so that it does not, and cannot, fall within the condemnation of the amendment invoked.

Next it is insisted, inferentially at least, that the statute itself is void for uncertainty by reason of the language employed in article 4502, to the effect that, before a shipper may recover under the provisions of the act, he must show by evidence that he "had on hand at the time any demand for cars was made" the necessary freight with which to load them. The argument is that the expression "had on hand" is so indefinite and uncertain as to defeat the statute. While these statutes have repeatedly been held to be highly penal in their nature, and while the rule of strict construction has at all times been applied to them, we nevertheless do not feel that the application of this rule should destroy the statute upon the grounds urged. The rule of strict construction, as applied to statutes, does not consist in giving words the narrowest meaning of which they are susceptible, nor does it consist in adopting that strained construction which would obviously be contrary to, or destructive of, the intention of the law-makers, when such intention itself is manifest from the section alone or in connection with other parts of the same act. The intention of the Legislature, even in penal statutes, when that intention can fairly be discovered, should in all cases control. The rule of strict construction, therefore, is, more properly speaking, a requirement that the plaintiff's case must be brought strictly within the spirit and letter of the statute—the intention of the Legislature, when once that intention is discovered. To be sure, courts cannot, and ought not to, deal with an act as a crime, unless it is plainly within the language used by the Legislature; but, when determining whether or not the act is within such language, a common-sense method of interpreting the language so as to ascertain its...