Opinion
(October Term, 1882.)
Common Carriers — Railways, Liability of — Bill of Lading.
1. The rigid rule of the common law in reference to the liability of common carriers, should not be applied to a case involving the violation of a penal statute.
2. In action by the plaintiff against a railway company for the penalty for delay in shipment of cotton, under the act of 1874-75, ch 240, sec. 2, cause by increase of freight; by the refusal of a connecting road of the same through line to transfer defendant's flat-cars over its road loaded with cotton; by the detention of defendant's box cars at terminus of said connecting road; and by its inability to procure other cars in time to ship plaintiff's cotton; and not by its competition with other lines for through freight-the defendant not being responsible for the causes of delay; It was held:
(1) To relieve from the penalty, the burden is upon the defendant to show that the shipment was"otherwise agreed" upon between the parties.
(2) And the through bill of lading (advantageous to both) received by the plaintiff, without objection that the cotton was to be shipped "at company's convenience," is evidence of plaintiff's assent to the restriction of defendant's common law inability, equivalent to an express agreement, and affects plaintiff with legal notice of its terms
(3) Ordinarily, a stipulation to ship "at company's convenience" is too indefinite, and therefore unreasonable; but under the circumstances in this case, the defendant is entitled to set up the agreement as a defence to the action for the penalty.
(4) Common carriers exercise a quasi public office, and are subject to legislative control.
SMITH C. J., Concurring.
RUFFIN, J. Dissenting.
(256) 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, sec. 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 RAILROAD, (257) 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 direction 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, of the firm of Whitehead Stokes — both members of the firm being educated men, able to read an 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 th 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 4,836 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 1,149 bales were at points south of those (258) places.
10. The defendant own 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, than in October, 1881.
13. The cotton for which the bill of landing was given was through freight, the plaintiffs applying for and receiving the same, to a point without the State and beyond the terminous of the 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 bill 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 the 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 (259) 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 "thorough" 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 (260) and out of the state.
5. The act is unconstitutional, in that; fact, it is in contravention of defendant's charter, and secondly, it affects inter-state commerce.
Messrs. Bunn Battle for plaintiffs.
Mr. John L. Bridges, Jr., for defendant.
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, has 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 (261) was not necessary to the decision of 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 has been shipping cotton on flat-cars over the Seaboard road for ten years previous to October, 1881, and has 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 delivered by the plaintiffs for shipment. After the exclusion of its flat-cars from the Seaboard road, the defendant was put under the necessity of running through to Portsmouth its box-cars to carry freight through, and but for that, could have transported all the freight delivered.
That the delay in shipping the plaintiffs' cotton was caused by the increase in freight, the refusal of the Seaboard road to admit the defendant's flat-cars on it, loaded with cotton, the detention of its (262) box-cars at Portsmouth, and its inability to procure other cars in time for this shipment.
And for these causes of delay, it does not appear that the defendant was in any way responsible. It could not have prevented the increase in freight, nor the unexpected action of the Seaboard road in reference to its flat-cars, and it seems, it did all in its power to prevent the detention of its cars at Portsmouth. It employed the services of a "car-tracer," and used the wires almost daily to get its cars returned from Portsmouth.
It is true, if the defendant's box-cars had not been used to carry the freight through to Portsmouth, the plaintiffs' cotton and all other freight could have been moved without delay. But a through bill of lading is advantageous to both parties — to the defendant, by saving it the trouble and expenses of breaking bulk at Weldon, and to the plaintiffs, by giving them lower rates of transportation, and this is probably the reason they applied for an received a bill of lading for through freight to Norfolk; and after doing so, it will not do for them to say, if their cotton had been shipped only to Weldon and the defendant's box cars had not been used to carry cotton to Portsmouth, the delay would not have occurred.
The delay in making the shipment then, it seems, has not been caused by any act of negligence or default on th part of the defendant, but resulted from the concurrence of circumstances entirely beyond its control. And if a common carrier can be exonerated in any case from the penalty given by the statute, we think this is one of the cases where it should be excused. When the facts as found in this case show that, by force of circumstances for which it was in no way responsible, it was disabled from performing the duty imposed by the statute, it would be unjust to punish it for failing to comply with its requirements.
Every common carrier who receives good for transportation is bound to ship them within a reasonable time, and when the (263) common law imposed that duty, and the legislature defines what is reasonable time, and subjects to a penalty the failure to comply with its requirements, unless otherwise agreed between the railroad and the shipper, the burden is on the railroad company to show the agreement relied upon in its exoneration. The defendant here says there was such an agreement between the railroad and the plaintiffs, and points to the restriction in the bill of lading given the plaintiffs, which is, that the cotton of plaintiffs is received for transportation at company's convenience.
That a railroad may restrict its common law liability, except for its own or its servants' negligence, is now generally admitted to be law. Redf. on Railways, 99, and the authorities there referred to; Capehart v. R. R. Co., 81 N.C. 438 and cases there cited.
But to avail the defendant the restriction must be brought to the knowledge of the shipper; and it is held that a restriction in a bill of lading given to the shipper at the time of the delivery of the goods, and received by him without remonstrance or objection, is evidence of an assent to the restriction, and is equivalent to an express agreement. Burgess v. Townsend, 37, Ala., 247; Belger v. Ginsmore, 54. N. Y., 166.
The plaintiffs however say they did not read the terms of the shipment until a few days before the action was commenced, but they could read, and the condition is in full print upon the face of the bill of lading, and it was their own fault they did not read it. We think it affected them with legal notice McMillan v. R. R. Co., 16 Mich. 79.
There was here then an agreement between the plaintiffs and the defendant company to ship the plaintiffs' cotton at its convenience, and the question resolves itself into the inquiry whether the restriction or agreement was reasonable.
Except under circumstances like those disclosed in the case, we should unhesitatingly hold that it was not a reasonable restriction (264) upon defendant's liability. When it is its duty to ship in a reasonable time, and the law limits the time to five days, a stipulation to ship at convenience is too indefinite, and therefore unreasonable. But under the extraordinary combination of adverse circumstances developed in this case, over which the defendant had no control, nor power, nor means to prevent or foresee, we must conclude that the condition was not so unreasonable as to prevent the defendant form setting it up as a defense, in action for the penalty prescribed by the statute.
The view we have taken thus far, dispose of the first four points of law raised by the defendant in the court below.
But the defendant also insisted that the act of 1874-75 is in violation of the constitution, and in contravention of its charter. Both of these question are definitely settled adversely to the defendant's position, by the decision in Branch's case, supra.
The defendant further contented that said act affected inter-State commerce and was therefore void. But this question has been as satisfactorily settled as those just mentioned. The Supreme Court of the United States has recently decided that railroads as common carriers exercise a sort of public office, and have duties to perform in which the public is interested; and that being so, they are subject to such regulations as maybe established by proper authorities for the common good. And where a railroad is situated within the limits of a single state, its business is carried on there; and its regulation being a matter of domestic concern, if it is employed in state as well as interstate commerce, unless congress acts, the state must be permitted to adopt such rules and regulations as may be necessary for the promotion of the general welfare of the people within its territory, though in doing so, (265) it may indirectly operate upon commerce outside its immediate jurisdiction. Munn v. Illinois, 4 Otto (U.S. Rep.), 113; Chicago, Etc., v. Iowa, Ib., 155.
In view of the special circumstances of this case, our conclusion is that the defendant is exonerated from liability to the penalty, and that there is error in the judgment of the superior court, which is therefore reversed, and judgment must be entered here for the defendant.