Opinion
(Filed 2 March, 1910.)
1. Instructions — Substantially Given.
It is sufficient when the charge of the court substantially gives the instructions requested.
2. Carriers of Goods — Penalty Statutes — Published Rates — Absence of Knowledge — Excuse.
It is the duty of the common carrier to establish, file and publish rated on interstate shipments, and its failure to do so will not relieve it from a liability for the penalty incurred in refusing to accept freight for shipment. In this case there was no evidence that the carrier did not have these rates, nor that the agent could not have procured the information as to the desired rate of carriage by proper effort.
3. Same — Presumption of Publication.
In the absence of evidence to the contrary, the Court will presume that a common carrier has established, filed and published its joint rates on interstate shipments, as required by law.
4. Carriers of Freight — Penalty Statutes — Refusal to Receive — Interstate Commerce — Constitutional Law.
It is established by the former decisions of this Court that Revisal, 2631, imposing a penalty on the refusal to accept interstate shipments, does not contravene the commerce clause of the Federal Constitution, both because the act is prior to the beginning of transportation and because there is no provision of the act of Congress attempting to regulate it; and further, the State act is in aid of, not an interference with interstate commerce.
5. Instructions — Unsupported.
Prayers for special instruction, unsupported by evidence, are properly refused.
6. Carriers of Freight — Penalty Statutes — Consignor and Consignee — Goods on Approval and Return — Party Aggrieved.
A consignee to whom goods are shipped on approval owes it as a duty to the consignor to return them if they are unsatisfactory, and he must do so to relieve himself of liability to the consignor; and he is the party aggrieved, under Revisal, sec. 2631, and may maintain his action thereunder for the penalty prescribed upon the refusal of the carrier to accept them for shipment.
7. Carriers of Freight — Penalty Statutes — Refusal to Receive — Continuous Tender.
Placing a Shipment of goods in the depot of the carrier, prepared for and with request of shipment, and thus leaving them there, makes each day's delay by the carrier "a refusal to ship," under Revisal, sec. 2631, and the carrier, thus refusing, is responsible for the penalty.
(71) APPEAL for Long, J., at May Term, 1909, of ALAMANCE.
The plaintiff sought to recover the penalty prescribed by Revisal, 2631, for the refusal of the defendant to receive for shipment to Saginaw, Michigan, certain milling machinery tendered it by the plaintiff on 28 January, 1907, no bill of lading of said machinery being issued until 3 April, 1907. The plaintiff's contention was that the defendant and failed and refuse dot receive said machinery for shipment upon tenders made daily and continuously for a period of sixty-five days, and that by reason of said refusal said defendant became indebted to the plaintiff in the sum of $3,050, all of this amount in excess of $2,000 being remitted by the plaintiff. The defendant denied that there was any tender of machinery for shipment until 3 April, 1907, the day on which bill of lading was issued. it alleged that Revisal, 2631, was unconstitutional, in so far as it affected interstate shipments. It also alleged that the plaintiff had no such interest in the said machinery as entitled it to bring this action. There was a verdict for the plaintiff and a judgment in accordance therewith, from which defendant appealed.
W. H. Carroll for plaintiff.
W. B. Rodman and Parker Parker for defendant.
BROWN, J., dissenting; WALKER, J., concurring in the dissenting opinion.
The exceptions 1, 2 and 12 are for failure to give certain prayers for instruction. On examination we find they were given substantially in the charge, which is sufficient. Harris v. R.R., 132 N.C. 163; R.R., v. Horst, 93 U.S. 201.
Exceptions 4, 5, 6 and 7, are for refusal to give defendant, s prayers for instruction 3, 4, 6 and 7, which, are in substance, that this being an interstate shipment, the defendant was required to establish, file and publish its rate between Burlington. N.C. and Saginaw, Mich., before shipping this freight, and that the burden was on the plaintiff to show that the rate had been so filed. The duty to file such rate was on the defendant, the fact was in its peculiar knowledge, and its failure to show that it had discharged such duty cannot absolve it from its duty to the plaintiff to accept and ship his freight. It cannot plead its own default as a defense to another default. Indeed, on 3 April, the (72) agent at Burlington did get such rate from division headquarters at Greensboro, twenty-one miles away. There is no evidence that such rate could not have been procured at any time prior thereto.
The court committed no error in refusing these prayers for instruction. The proper establishing, publication and filing rates will be conclusively presumed. In Reid v. R.R., 150 N.C. 764, the Court, in passing upon the same contention, said: "The presumption is that the company has complied with the law, and if it were otherwise we are of the opinion that the act of Congress and the orders of the commission made thereunder, requiring the publication of rates, was made for an entirely different purpose from that involved in this inquiry, and does not constitute such interfering action." To same purport R.R. v. Oil Mills, 204 U.S. 449.
In Harrill v. R.R., 144 N.C. 540, the Court says: "It must be presumed against the contention of the defendant that it has complied with the law by filing its schedule of rates, fares and charges with the commission, and by publishing the same."
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, and the statute has no sort of application to this case, where the defendant was carrying on such business and presumptively, at least, under authority of law.
Exceptions 6, 13, 14 and 16 call in question the constitutionally of Rev., 2631, as applied to interstate shipments. We have repeatedly passed upon this contention, The defendant's brief admits this, and cites eight decisions of this Court which it asks us to overrule. In one of the latest of these, Reid v. R. R., 149 N.C. 423, the authorities were reviewed and the Court said: "The defendant contends, however, that Revisal, sec. 2631, giving a penalty for refusing to accept freight for shipment, is unconstitutional when the freight is to be shipped into another State. But refusing to receive for shipment is an act wholly done within this State; it is not a part of the act of transportation, and our penalty statute applies. This was held by Avery, J., in Bagg v. R. R., 109 N.C. 279, where the railroad company received the shipment for a point in another State, but negligently detained it for five days before shipping. The precise point herein was raised in Currie v. R. R., 135 N.C. 536, and it was held that this section, giving a penalty for failing and refusing to accept for shipment the car-load of lumber, (73) was not unconstitutional an interference with interstate commerce when the lumber was offered for shipment to a point in another State. Both of these cases were cited and reaffirmed by Walker, J., in Walker v. R. R., 137 N.C. at page 168. In Twitty v. R. R., 141 N.C. 355, Brown, J. it was held that where the agent held the freight in storage, but refused to give a bill of lading because he did not know the freight rates, this was `a refusal to receive for transportation, and the railroad company was liable for a penalty under Revisal, 2631.' in Harrill v. R. R., 144 N.C. 532, Walker, J., it was held that Revisal sec. 2633, imposing a penalty for failure to deliver freight, was valid, though the freight was interstate." There the penalty was incurred after the transportation had ceased. Here the penalty occurred before the transportation had been begun and before the freight was even received and accepted for transportation.
When the case was again before the Court, Reid v. R. R., 150 N.C. 764, Justice Hoke, after reviewing and approving the former decision, said: "Since this decision in Morris-Scarborough-Moffitt Co. v. Express Co. was rendered, the Supreme Court of the United States, the final authority on these matters, held on a question relevant to this inquiry that,`Notwithstanding the creation of the Interstate Commerce Commission and the delegation to it by Congress of the control of certain matters, the State may, in the absence of express action by Congress or by such commission, regulate for the benefit of its citizens local matters indirectly affecting interstate commerce.' This principle was announced and sustained in R. R. v. Flour Mills, 211 U.S. 612, a case which involved the fight of the court to compel the railroad company or common carrier to place cars on a siding which had been prepared for the purpose and for the benefit and convenience of a flouring mill engaged in making shipments of interstate commerce."
The above decisions have been since followed by Connor, J., Garrison v. R. R., 150 N.C. 575, 592, with 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, cited and approved in Garrison v. R. R., supra, 582.
That the interstate commerce did not begin till the goods were accepted for shipment and bill of lading issued is held. Match Co. v. Ontonagon, 188 U.S. 94, citing Coe v. Errol, 116 U.S. 517 where Bradley J., held that "not till goods have begun to be transported from one State to another do they become the subjects of interstate commerce and as such subject to Federal regulation." In this opinion (p. 528) he says: "It is true, it was said in the case of the Daniel Ball, 10 Wall., 565, `Whenever a commodity has begun to move as an article of trade (74) from one State to another, commerce in that commodity has commenced.' But this movement does not begin until the articles have been shipped or started for transportation from the one State to the other. . . . Until shipped or started on its final journey out of the State, its exportation is a matter altogether in fieri, and not at all a fixed and certain thing."
Besides, the statutory enforcement, under penalty , of the common-law duty to accept freight "whenever tendered" is not in the scope of terms of any act of Congress, and is neither an interference with nor a burden upon interstate commerce, but in aid of it.
Exceptions 17, 18, 19, 20, 21, 22 and 23 present only one question, and may, therefore, be treated together. Did the plaintiff have the right to bring this action? Was he the aggrieved party? The law is correctly set forth in the following citations: "The shipper of the goods is the party aggrieved and is the one entitled to sue for the penalty prescribed in Revisal, sec. 2631, which arises from the wrongful refusal of the carrier's agent to accept them for transportation. Reid v. R. R., 149 N.C. 423; s. c., 150 N.C. 753.
"In giving the penalty to the party aggrieved the statute simply designates the person who has the right to sue and restricts it to him who by contract has acquired the right to demand that the service be rendered. The party aggrieved in statutes of this character is the one whose legal right is denied, and the penalty is enforcible independent of pecuniary injury." Rollins v. R. R., 146 N.C. 156; Cardwell v. R. R., ib., 218; Summers v. R. R., 138 N.C. 295.
This machinery had been shipped to the plaintiff on approval, and as it proved unsatisfactory, it was the plaintiff's duty, if it would relieve itself of liability, to return it to the vendors at Saginaw, Mich., and it had the legal right to demand of the defendant its transportation to that point, and was the party aggrieved by failure to do so.
Connor, J., speaking for a unanimous Court, said in Garrison v. R. R., 150 N.C. 586: "The defendant next urges that the penalty of $50 for each day the said company refuses to receive said shipment can be recovered only when a tender is made on each day. We cannot concur in that view. The plaintiff hauled his lumber to the defendant's regular depot, and with his consent placed it upon the car (in this case, in (75) its depot), demanding a bill of lading, which was refused. plaintiff says he went to the agent two or three times and asked if he had shipped it, and he said he had not. . . . To require the defendant to haul the lumber home and return it to the depot each day, or to go through the empty form of making a constructive tender, imposes either an unwarranted hardship or savors of trifling with a man's substantial rights. The plaintiff left the lumber on the car with a standing tender and demand that it be shipped. . . . The statute would be of little value as a remedy for existing evil if the narrow construction is given as contended by defendant. The Legislature evidently intended to impose a penalty for each day upon which the freight was at the depot ready for shipment. Each day's delay in shipping was `a refusal to ship' within the meaning of the statute."
The verdict of the jury established that the defendant failed and refused for sixty-one days to receive said goods for shipment. The plaintiff remitted all in excess of the penalty for forty days.
If the defendant had offered to ship to the end of its line, and declined to ship farther for lack of rates, a different point might have been presented; but there is no such exception in the record or in appellant's brief, and more than one of defendant's prayers is predicated on its refusal to issue any bill of lading because the agent at Burlington did not have the rates to Saginaw, though he had applied to the agent at Greensboro for them. But the neglect of the agent at Greensboro, or of those "higher up," was the failure and default of the defendant. Besides, if the defendant had issued the bill of lading, it is common knowledge that it would have contained the words "said company agrees to carry to its usual place of delivery, if on its road, otherwise, to deliver to another carrier on the route to said destination." These words, always used in such cases, are retained in the bill of lading prescribed by the Interstate Commerce Commission. The plaintiff asked for no other kind of bill of lading, and could not have expected the defendant to be responsible for shipment beyond the end of its own line. The defendant refused to issue any bill of lading at all (which would have been, of course, in the usual form for such shipments) or to ship at all, and the defendant is liable. Twitty v. R. R., 141 N.C. 355, in which the opinion is by Brown , J., is exactly in point.
Affirmed.