Olive v. Atlantic Coast Line Railroad , 152 N.C. 279 ( 1910 )

Action to recover penalty of the defendant carrier for refusal to receive, for shipment, lumber tendered by the plaintiffs to defendant's agent at Wade, N.C. for shipment to Henderson-Jarrett Company at Norfolk, Va., and refusing to issue a bill of lading for the same, after due demand by the plaintiffs, and for damages suffered in consequence of such refusal.

The cause coming on to be heard on demurrer, the demurrer was overruled, and defendant appealed. 1. The allegations of the complaint could be made a little more definite as to the exact place where the tender of the lumber was made, but in their present form we think they state a cause of action which, if established, would entitle plaintiffs to recover something.

It is manifest from an examination of section 2631 of the Revisal, under which this action is brought, that the exact place of tender is very material in determining the liability of the carrier. Under the language of the statute the carrier is required to receive at "a regular station" only "all articles of the nature and kind received by such company for transportation." The carrier is not required to receive them when tendered elsewhere, except in the case of loaded cars (loaded by the shipper), which may be tendered "at a sidetrack or any warehouse connected with the railroad by a siding."

Of course, the plaintiffs cannot recover, on this complaint, for a failure to furnish cars under section 2634 of the Revisal, as they do not set out any allegations of fact coming within the terms of that section, or base their claim upon it.

The gravamen of their complaint and the cause of action, as stated, is that they tendered to defendant at Wade, N.C. a certain quantity of loose lumber for shipment to Henderson-Jarrett Company, Norfolk, Va., which the defendant wrongfully and unlawfully refused to receive and issue a bill of lading for. We infer from this that Wade, N.C. is a regular station of the defendant and that loose lumber (not loaded by the shipper in cars) is an article of the nature and kind usually received by railroads for transportation. But these facts can be best determined upon the trial.

2. The question of the measure of damage cannot be considered upon demurrer. If the allegations of the complaint be sustained the plaintiffs will be entitled to recover some damage, if only nominal. The true measure of damage can best be determined when all the facts are before the court.

3. Whether this transaction comes within the purview of the interstate commerce law, so as to relieve the defendant from a penalty for refusal to receive the lumber for shipment to Norfolk, Va., need not be discussed. In any event, the plaintiffs would be entitled to recover their actual damages, whether they could recover the penalty or not. But the writer regards the question as settled by this Court in the recent case of LumberCo. v. R. R., 151 N.C. 23.

We notice in the judgment that the demurrer is overruled and (281) the defendant taxed with all the costs. There being no contention that the demurrer is frivolous, the judgment should have been that the defendant answer over.

As modified, the judgment is

Affirmed.

Cited: Tilley v. R. R., 162 N.C. 39.