Whitehead v. Wilmington & Weldon R.R. Co.

• Decision Date: 31 October 1882
• Citation: 87 N.C. 255
• Court: North Carolina Supreme Court
• Parties: WHITEHEAD & STOKES v. WILMINGTON & WELDON RAILROAD COMPANY.

87 N.C. 255

WHITEHEAD & STOKES

v.WILMINGTON & WELDON RAILROAD COMPANY.

Supreme Court of North Carolina.

October Term, 1882.

OPINION TEXT STARTS HERE

CIVIL ACTION begun before a justice of the peace and tried on appeal at Spring Term, 1882, of EDGECOMBE Superior Court, before Bennett, J.

This action was brought to recover the penalty under the act of 1874-'75, ch. 240, §2, for failing to ship the cotton of the plaintiffs for more than five days after its delivery to defendant company.

The act is as follows: It shall be unlawful for any railroad company operating in this state to allow any freight it may receive for shipment, to remain unshipped for more than five days, unless otherwise agreed between the company and the shipper; and any such company violating this section shall forfeit and pay the sum of twenty-five dollars for each day said freight remains unshipped, to any person suing for the same.

A jury trial was waived, and the facts were found by the court as follows:

1. Plaintiffs delivered to defendant's agent at Battleboro station on the 2nd of November, 1881, four bales of cotton consigned to Tredwell & Co., at Norfolk, Virginia, and the defendant allowed the same to remain unshipped for six days in excess of five full days of demurrage.

2. A bill of lading, of which the following is a copy, was executed on the day the cotton was delivered:

+-------------------------------------------------------------+
                ¦

[No. 264]¦WILMINGTON & WELDON RAILRAOD,     ¦
                +--------------------------+----------------------------------¦
                ¦                          ¦BATTLEBORO STATION, NOV. 2d, 1881.¦
                +-------------------------------------------------------------+
                

Received of Whitehead & Stokes for transportation, at company's convenience, with liberty to compress while in transit, as per marks and directions as herein given, subject to the conditions stated upon the back of this receipt, and to which, by the acceptance thereof, the shipper assents, the following described bales of cotton. (The marks indicated the consignors, number and weight of the bales of cotton, and name and place of consignee, and the receipt was signed by the company's agent.)

3. The said bill of lading was on the same, or the next day, put into the hands of W. D. Stokes, one of the firm of Whitehead & Stokes--both members of the firm being educated men, able to read and write.

4. The cotton was not shipped until the 14th of November, 1881.

5. The said firm did not know the contents of the bill of lading, and never read it, until after suit brought, nor did the said agent of the defendant.

6. The road of defendant company is a connecting link in the Atlantic Coast Line, and the defendant's rolling stock was sufficient to transfer all the freight which came to it, either as through or local freight, with prompt dispatch.

7. Early in September, 1881, the Seaboard & Roanoke railroad company, one of the links of the Atlantic Coast Line, notified the defendant that it would not transfer over its road flat-cars, belonging to defendant company, loaded with bales of cotton.

8. During the months of October, November and December, 1881, there was an increase of 4836 bales of cotton carried by defendant over its road, as compared with the same months of the year before.

9. Of such increase 734 bales were at Battleboro and Whitaker's stations, and 1149 bales were at points south of those places.

10. The defendant owns 120 flat-cars, each of capacity to carry forty bales of cotton, and they could not have been replaced with box-cars between September and November, 1881.

11. Defendant shipped no cotton beyond its immediate line on flat-cars, after the notice from the Seaboard road, but did ship some flat-loads of cotton received by it from the North Carolina road.

12. Shipments of cotton over defendant's road were greater in November and December, each, than in October, 1881.

13. The cotton for which the bill of lading was given was through freight, the plaintiffs applying for and receiving the same, to a point without the state and beyond the terminus of defendant's road, and a through bill of lading was advantageous to plaintiffs by giving them lower rates, and also to defendant by obviating the necessity of breaking bulk at Weldon (the northern terminus of defendant's road.) Through bills of lading have been in use by defendant for ten years.

14. There was an increase in the tonnage carried over defendant's road during October, November and December, 1881, of 11,054,437 pounds.

15. The cotton of plaintiffs received by defendant was carried through to Portsmouth, Virginia, in cars belonging to defendant.

16. The refusal of the Seaboard road to carry flat-cars of defendant loaded with cotton, over its road, and the increased tonnage of defendant's freight and detention of defendant's cars at Portsmouth, were causes of delay in carrying through freight.

17. Plaintiffs knew that the cotton was not shipped within five days after delivery, and yet made no objection before the 14th of November, 1881, to the bill of lading; but did not know at the time, that is, during the delay in shipment, the contents of the bill of lading.

18. Defendant has used flat-cars for ten years in shipping cotton.

19. The delay in the shipment was not caused by competition for through freight.

20. Defendant employed the services of a car-tracer, and used the telegraph wire almost daily to get its cars returned promptly from Portsmouth; and if its cars had been used to carry freight to Portsmouth, all freight could have been moved without delay.

21. The form of said bill of lading was first used by defendant after the ratification of the said act of 1874-'75.

22. The defendant, in fact, ran over its road two kinds of freight trains, a ““through” and “local,” and the same number of each, daily; the through freight train took no freight along the line of road between Wilmington and Weldon, except at Goldsboro, (where now and then it took on cars). These freight trains were made up of cars belonging to the Seaboard road, as well as those of the defendant.

Upon these facts the judge held that the defendant was liable to the penalty of twenty-five dollars per day, for six days. Judgment was accordingly rendered in favor of the plaintiffs, and the defendant appealed.

The defendant excepted to the conclusions of law as announced by His Honor, because,

1. Under the facts found the defendant is exonerated from the penalty, and the judgment is erroneous.

2. By applying for a bill of lading to have freight shipped beyond the state and defendant's terminus, and receiving the same, the plaintiffs thereby waived the penalty.

3. The plaintiffs, having received the bill of lading and having made no objection thereto, are bound by its terms.

4. The act cannot be construed to embrace freight agreed to be shipped as through freight by defendant, and beyond its line and out of the state.

5. The act is unconstitutional, in that; first, it is in contravention of defendant's charter, and secondly, it affects inter-state commerce.

Messrs. Bunn & Battle, for plaintiffs .

Mr. John L. Bridgers, Jr., for defendant .

ASHE, J.

We cannot concur in the conclusion of law to which the court came, upon the facts found.

The action is brought upon a penal statute, which is always to be construed strictly in favor of those who are charged with violating its provisions. The rigid rules therefore, of the common law with reference to the liability of common carriers, should not be applied to a case involving the violation of a penal statute.

In Branch v. R. R. Co., 77 N. C., 347, which like this was an action to recover the penalty given by the act of 1874-'75, it was very clearly intimated, that the excuse of inability to provide cars sufficient to transport the freight delivered to the company, in consequence of the accumulation of freight, would have availed the defendant as a defence to the action, if it had not caused the accumulation by a competition with other roads for through freight.

In Keeter v. R. R. Co., 86 N. C., 346, which has been referred to as authority for the position that no excuse is admissible to exempt a railroad company from the penalty, when it violated the letter of the statute, it may be well to observe that this court did not enter fully into the discussion of that question; for it was not necessary to do so, as the case turned upon the point, that the delay with which the defendant was charged, had not continued beyond five full running days. Branch's case was cited as authority for that position, and the case went off upon that point. The other point, as to the excuse, did not engage the special attention of the court, as its consideration was not necessary to the decision of the case; and the court could not have intended to hold that there could be no excuse, when it was citing Branch's case with approval, in which it is conceded that excuses may be admitted.

The question then is, has the defendant incurred the penalty, or are the excuses given by it sufficient to exonerate it from liability?

The statement of the case discloses the following facts:

That there was a considerable accumulation of freight along the line of defendant's road during the months of October and November, caused by an increase in the crop, but not by any competition of the defendant for through freight.

That it had been shipping cotton on flat-cars over the Seaboard road for ten years previous to October, 1881, and had 120 cars, each with capacity to carry forty bales of cotton, which were sufficient to transport all the freight that came to it, either as through or local freight, with promptness and dispatch. But sometime in September, 1881, the Seaboard road notified the defendant that it would not transfer over its road flat-cars, belonging to the defendant, loaded with bales of cotton; and after that, box-cars in place of these excluded cars, could not have been procured before the 2d day of November, when the cotton was...