(Argued May 12, 1915. Decided June 1, 1915.)
In error to the Supreme Court of the State of South Carolina to review a judgment which affirmed a judgment of the Circuit Court of Hampton county, in that State, affirming a judgment of the magistrate's Court for that county in favor of plaintiff in an action against a terminal carrier to recover the damages to an interstate shipment and a penalty for failure to pay the claim promptly. Reversed.
See same case below, 98 S.C. 63, 79 S.E. 700.
The facts are stated in the opinion.
This is an action for $14.75, damage to furniture in transit from High Point, North Carolina, to Varnville, South Carolina, $4.60 overcharge, and $50 penalty under a South Carolina statute (Civil Code 1912, sec. 2573), for a failure to pay the claims within forty days. The defendant contended that the law imposing the penalty was invalid under the act to regulate commerce, especially sec. 20 (24 Stat. at L. 386, chap. 104), as amended by the act of June 29, 1906, chap. 3591, 34 Stat. at L. 584, 593, Comp. Stat. 1913, secs. 8563, 8592, known as the Carmack Amendment. The lower Courts gave judgment for the plaintiff, and the judgment was affirmed by the Supreme Court of the State. AtlanticCoast Line R. Co. v. Mazursky, 216 U.S. 122,54 L. Ed. 411, 30 Sup. Ct. Rep. 378, was relied upon as still sustaining the law notwithstanding the amendments of the Federal act.98 S.C. 63, 79 S.E. 700.
The defendant (plaintiff in error) received the goods from the Southern Railway Company and delivered them in damaged condition. Where the damage was done does not appear. But by sec. 2572, in such cases the initial, intermediate, or terminal carrier who fails within forty days from notice to inform the notifying party when, where, and by which carrier the property was damaged is made liable for the amount of the claim and a penalty of $50, although it may escape by proof that it used due diligence and was unable to trace the property, etc. By sec. 2573 a similar liability is imposed on carriers for failure to pay claims for freight overcharge or damage to property while in the possession
of such carriers, "within forty days in case of shipments from without the State, after the filing of such claims," etc. If the property never came into their possession, they are remitted to sec. 2572. It seems to follow from the decision in this case, that the terminal carrier is held for a loss anywhere along the line, and for the penalty, unless it proves that the property never came into its possession, etc., or succeeds in shifting the loss within the forty days allowed. Therefore the assumption of this Court inAtlantic Coast Line R. Co. v. Mazursky, 216 U.S. 122,129, 54 L. Ed. 411, 416, 30 Sup. Ct. Rep. 378, that the statute only concerned property lost or damaged while in the possession of a carrier in South Carolina, no longer is correct; perhaps because of amendments in what now is sec. 2572.
It is true that in the opinion of the Supreme Court the judgment is spoken of as being for damage done to a shipment "while in defendant's possession in this State," and it is said that the statute limits the liability to such damage. But in view of the record this can mean no more than that there is a presumption that the carrier that fails on notice to point out some other as responsible is itself in fault. The defendant happened to be the last carrier of the line, and in many States, including South Carolina, a so-called presumption has been established at common law that property starting in good condition remained so until the latest moment when it could have been harmed. But while this seems to have made its first appearance in the guise of a true presumption of fact, it became, if it was not always, a rule of substantive law, a rule of convenience, calling on the last carrier to explain. Willett v. Southern R. Co., 66 S.C. 477,479, 45 S.E. 93, 14 Am. Neg. Rep. 635; Moore v. NewYork, N.H. H.R. Co., 173 Mass. 335, 337, 73 Am. St. Rep. 298, 53 N.E. 816. The rule is stated as a rule of policy in South Carolina, and the statute makes it still more
clearly so, since, with the limits that we have stated, it applies indifferently to any carrier in the line, if within the State, according to the accident of the plaintiff's demand. The case, then, we repeat, is that a carrier in interstate commerce has been held liable for a loss not shown to have happened while the goods were in its possession or within the State, or to have been caused by it, if those facts are now in any way material, on the strength of a rule of substantive law.
The claims dealt with in Atlantic Coast Line R. Co. v.Mazursky, 216 U.S. 122, 54 L. Ed. 411, 30 Sup. St. Rep. 378, all arose before June 29, 1906, the date of the Carmack Amendment. The South Carolina law has been amended and enlarged in scope since that decision, but it is less necessary to scrutinize those changes than to consider the modifications of the United States law. As it now stands that law requires the initial carrier to issue a through bill of lading, and makes it liable for all damage anywhere on the route. Sec. 20. By sec. 1, as amended by the act of June 18, 1910, chap. 309, sec. 7, 36 Stat. at L. 539, 546, Comp. Stat. 1913, sec. 8563, it is made the duty of carriers to secure the safe transportation and delivery of property subject to the act, upon reasonable terms. As was said inMissouri, K. T.R. Co. v. Harris, 234 U.S. 412, 420,58 L. Ed. 1377, 1382, 34 Sup. Ct. Rep. 790, the result of many recent cases there cited, beginning with Adams Exp. Co. v.Croninger, 226 U.S. 491, 57 L. Ed. 314, 44 L.R.A. (N.S.) 257, 33 Sup. Ct. Rep. 148, and coming down through Boston M.R. Co. v. Hooker, 233 U.S. 97, 58 L. Ed. 868, L.R.A. 1915b, 450, 34 Sup. Ct. Rep. 526, is that "the special regulations and policies of particular States upon the subject of the carrier's liability for loss or damage to interstate shipments, and the contracts of carriers with respect thereto, have been superseded." It is true that in that case the inclusion of the attorney's fee, not exceeding $20, in the
costs upon judgment for certain small claims was upheld, although incidentally including some claims arising out of interstate commerce. But, apart from the effect being only incidental, the ground relied upon was that the statute did not "in any way enlarge the responsibility of the carrier" for loss or "at all affect the ground of recovery, or the measure of recovery" (pp. 420, 422). The South Carolina act, on the other hand, extends the liability to losses on other roads in other jurisdictions, and increases it by a fine difficult to escape. It overlaps the Federal act in respect of the subjects, the grounds, and the extent of liability for loss. We leave on one side the remote analogies put forward in the decision of the State Court, as, in our opinion, the cases and principle to which we have referred are sufficient and direct. We should add that the item for overcharges also falls under the act of Congress, sec. 2, as it now stands, since that section makes the receiving of greater compensation than is received from others for similar services an unjust and unlawful discrimination. The penalty, the only matter that we are considering, was exacted for a failure to pay both claims, within forty days, irrespective of the question whether adequate investigation had been possible, as required by the Interstate Commerce Commission's ruling, Nos. 462, 236 and 68.
It is suggested that the act is in aid of interstate commerce. The State law was not contrived in aid of the policy of Congress, but to enforce a State policy differently conceived; and the fine of $50 is enough to constitute a burden.Southern R. Co. v. Reid, 222 U.S. 424, 443, 56 L. Ed. 257,262, 32 Sup. Ct. Rep. 140. But that is immaterial. When Congress has taken the particular subject matter in hand, coincidence is as ineffective as opposition, and a State law is not to be declared a help because it attempts to go farther than Congress has seen fit to go. Chicago, R.I. P.R.Co. v. Hardwick Farmers Elevator Co., 226 U.S. 426,
435, 57 L. Ed. 284, 287, 46 L.R.A. (N.S.) 203,33 Sup. Ct. Rep. 174; Southern R. Co. v. Railroad Commission,236 U.S. 439, 446, 447, ante, 304, 35 Sup. Ct. Rep. 304. The legislation is not saved by calling it an exercise of the police power, or by the proviso in the Carmack Amendment saving the rights of holders of bills of lading under existing law. Adams Exp. Co. v. Croninger, 226 U.S. 491, 506,507, 57 L. Ed. 314, 320, 321, 44 L.R.A. (N.S.) 257,33 Sup. Ct. Rep. 148.
Judgment reversed.