(September Term, 1889.)
Penalty — Common Carrier — "Regular Depot or Station."
1. The terms "a regular depot," or "station," employed in section 1964 of the Code, contemplate fixed and established places on the line of a railroad, or other transportation company, equipped with suitable buildings and furnished with the necessary officers and servants for the regular transaction of business, for the receipt and delivery of freights, and the comfort and convenience of passengers.
2. Where it was shown that a railroad company had been in the habit of stopping at a certain locality to deliver mails; that it received such passengers there as might wish to embark on its trains, and that it had also been accustomed to receive and deliver freights for the accommodation of its patrons in the vicinity; that the place was designated as a station on its tariff schedule, but that it had no agent, office, warehouse, or other facility for the transaction of its business. Held, not to constitute "a regular depot," or "station," within the meaning of the statute.
APPEAL from MacRae, J., at March Term, 1889, of HALIFAX. (49)
R. O. Burton, Jr., for plaintiff.
W. H. Day and J. M. Mullen for defendant.
The action is brought to recover divers penalties which, the plaintiff alleges, the defendant Railroad Company incurred by the refusal of its agent to receive certain carloads of lumber at one of its regular stations on its road, called "Spring Hill," for transportation, etc., in violation of the statute (Code, sec. 1964).
The statute (Code, sec. 1964) prescribes that "agents or other officers of railroad and other transportation companies, whose duties it is to receive freights, shall receive all articles of the nature and kind received by such company for transportation, whenever tendered at a regular depot, station, wharf, or boat-landing, and shall forward the same by the route selected by the person tendering the freight, under existing laws; and the transportation company, represented (54) by any person, refusing to receive such freight, shall be liable to a penalty of fifty dollars, and each article refused shall constitute a separate offense." It will be observed that such tender must be made "at a regular depot or station," etc. The word "regular," as thus employed, is important and significant. It is descriptive and limiting in its meaning and application; it implies, in the order of business of such companies, a settled, established, recognized depot, or station, and such tender of freight there as contradistinguished from an irregular, temporary, or casual place, fitted up, in some limited degree, for the purpose of receiving freight for shipment, for the convenience or accommodation of the shipper, or the company, or for the same of both. Such temporary places are not adapted to, and fitted up for, nor are they intended to be used in the ordinary, orderly and continuous course of business. A great variety of circumstances and considerations might prompt a railroad company to depart from its regular course of business, especially when its road is new, in receiving various kinds of freight at places other than its regular depots and stations. It might be convenient — indeed, important — to its business to receive such freights as lumber, heavy timber, stone, brick, cotton, corn, or other ponderous freights, at irregular, temporary stations along the way, to be used for an occasion, for a week, or a month, or at intervals, as occasion might require. It might do so, not regularly, not for shippers generally, but for special considerations of convenience, or profit, when it could, or would, in its discretion. And it might provide side-tracks and other appliances for such temporary purposes. The statute clearly does not apply to and embrace such depots and stations. The word "regular," as employed, is intended to exclude such implication. If the purpose had been to include them, the appropriate language would be, "tendered at any and every depot, station," etc., or other like comprehensive terms.
The purpose not to include such irregular stations, is the more (55) manifest because it would be impracticable, unreasonable and unjust to require such companies to receive freight at places where it had not made preparations for the general reception of the same. It is not to be presumed, in the absence of statutory provision, that the Legislature intended to prevent them from receiving freights on the way, now and then, more or less frequently, as their and the shippers' convenience might prompt. There is nothing in the general statute, of which the section under consideration is a part, that suggests such purpose.
A "regular" deport or station of a railroad company, as contemplated by the statute, is a certain place situate alongside of or near to its railroad, fitted up by it with suitable buildings, erections, appliances and conveniences for carrying on generally and continuously, in an orderly manner, the business of transporting freights, as is usually done by such companies. Such buildings, and other things necessary for a regular depot or station, may be greater or smaller in number and extent, or more or less elaborate, that others of like kind and for like purposes; but whether they be sufficient or good, or indifferent, or are well or ill adopted to, and intended for, the purpose of prosecuting the business of transporting freights and passengers, receiving from shippers generally, and at all seasonable times, such freights as the railroad company is required to transport over its road, such depots or stations imply, ordinarily, such suitable and sufficient buildings, erections and appliances as may be necessary in receiving and delivering freights, and for the temporary protection of the same until they shall be transported or delivered to the persons entitled to have them, and that the company has a business office there, and suitable agents and employees to receive and deliver freights, to give receipts, bill of lading for the same, and to do the like and similar service. They are settled, recognized places, to which shippers of freights may, at all appropriate times, go to ship, or receive the same. The law so requires, (56) and such companies hold themselves out, at such places, to the public, as there ready and prepared to receive freights, and to do what should be done in respect to do and about the same. It is at such places, shippers have the right, under the statute, to tender freights to the agents of such companies for transportation, and not elsewhere. Kellogg v. R. R., 100 N.C. 158; R. R. v. Flagg, 43 III., 364; S. v. R. R., 41 Conn. 134.
Now, applying what we have just said to the case before us, we think the court below properly instructed the jury, in substance, that the whole evidence produced on the trial, accepted as true, did not prove that the plaintiff tendered the freight, as alleged in the complaint, to the agent of the defendant, at a regular depot or station on its road. It seems that, at one time, a considerable period before the tender of the lumber by the plaintiff, the defendant kept an office — a place of business — at the place designated as "Spring Hill"; but the witness for plaintiff does not say that a "regular" depot or station was there. On the contrary, his evidence tended to show that the defendant had received the plaintiff's lumber — not that of others — there, irregularly, from time to time, for a considerable while. The fact that the place was called "Spring Hill"; that the mail train stopped there regularly to deliver the mail; that the place was set down, in circulars and orders of the company, as a station, did not, necessarily, make it a "regular" station. Regular, orderly business must have been done there; the defendant must have professed to do such business there; had suitable buildings and appliances, agents and employees there to give bills of lading, receipts, and the like, to shippers going there to tender or receive freights at all appropriate times. There was no depot, no freight, no agents, no employees stationed there for such purpose at the (57) time of the alleged tender, or for a long while before that time, and this, we think, fairly appears from the evidence taken as true.
If the plaintiff intended to insist upon his right to compel the agent of the defendant to accept the freight, or subject the latter to the penalty for the agent's refusal to do so, then he should have tendered it at a "regular station." He can have such penalty only in the case prescribed by the statute. It imposes the penalty only when the tender and refusal were made at a "regular" station, such as that pointed out above.