Strock v. So. Ry. &8212 Carolina Division

This is an action for damages alleged to have resulted from the breach of an express contract "and from other causes of action as alleged in the complaint."

The complaint contains at least two causes of action, not separately stated as the statute requires: (1) For damages resulting from the breach of an alleged agreement on the part of the railway company to supply the plaintiff with at least two cars per week, for the shipment of sawlogs, in the production of which the plaintiff was extensively engaged, at or near a station on the defendant's line known as "Fifty-Eight," in Orangeburg county. The shipments were expected to be made from that point to other points. It does not appear whether the points of destination were within or beyond the limits of this state. (2) For damages resulting from the alleged failure of the defendant to deliver a certain shipment of logs which had been received by it for transportation.

The complaint was subject to a motion to have the causes of action separately stated and to a motion to have the complaint made more definite and certain in the statements of the causes of action. These motions were not noticed, but a demurrer was interposed upon grounds which will be reported. It was overruled by his Honor, Judge Wilson, and hence this appeal. The complaint states a cause of action on the second ground above referred to, and for that reason a demurrer to the complaint as a whole could not properly have been sustained.

With reference to the cause of action based upon a specific agreement on the part of the railroad company to supply cars at stated times, it is conceded that, if the cars were to be used in interstate commerce, the alleged agreement constituted an illegal discrimination, not authorized by the published tariffs, and cannot form the basis of an action for its breach. Davis v. Cornwell, 264 U.S. 560; 44 S.Ct., 410;68 L.Ed., 848, citing a long list of cases in the margin.

Assuming that the cars were to be used in intrastate shipments, the question is, Does the alleged agreement offend against the laws of South Carolina? Section 4842, 3 Code 1922, provides:

"It shall be unlawful for any person so engaged as aforesaid, or person engaged solely in the shipment or receiving of property, directly or indirectly, to allow or receive any rebate, drawback or advantage, in any form, upon shipments made or services rendered or received by them as aforesaid."

The question is further narrowed to this: Does the agreement to furnish two cars per week, for an indefinite period, for the movement of the plaintiff's product, regardless of conditions, congested traffic, inability to obtain cars, or other cause consistent with the exercise of due care, on the part of the carrier, constitute the allowance, direct or indirect, of an advantage to the particular shipper, over what the ordinary shipper had the right to demand?

As between a common carrier and an ordinary shipper, that is, one with whom the carrier has not entered into any special agreement, the obligation of the carrier, upon application for shipping facilities, is to use due diligence to provide, upon reasonable notice, the shipping facilities required. This obligation includes the obvious duty to keep for use such rolling stock as the requirements of ordinary business make necessary, but not the duty to keep extra rolling stock to meet extraordinary or unprecedented requirements. 4 Elliott, Railroads, § 2219. "It is in general bound to furnish suitable cars upon reasonable notice and with reasonable diligence whenever it can do so without jeopardizing its other business. But the duty is not absolute under all circumstances to furnish any particular number of cars at any particular time, in the absence of a special contract.' Id., 2344.

In 4 Elliott, Railroads, § 2222, it is said, assuming that such a contract is authorized:

"Where a railroad company expressly undertakes by special contract to furnish cars at a specified time, it is bound to perform its contract. Where there is no express contract, then, as we have seen, an unusual press of business may excuse the company for a failure to furnish cars, but where there is an express contract (of course meaning, I interpolate, an enforceable, express contract), the rule is that a press of business, although unusual and unexpected, will not relieve the company from liability."

In the case of Mauldin v. Railroad Co., 73 S.C. 9;52 S.E., 677, the Court said:

"Another request erroneously refused was as follows: ``The obligation to furnish cars in this case is an obligation * * * as binding as if the defendant railroad had contracted to furnish the cars. In this case the defendant is not liable if it has shown a reasonable excuse for failure to furnish the cars; heavy and unprecedented traffic, not reasonably to be expected and prepared for, would excuse the railroad for a deficiency of cars.'"

In sustaining an exception to the refusal to this request, the Court said:

"If a common carrier assumes a contractual obligation outside of and beyond the duty imposed by public policy, it must perform the contract or pay the damages, unless it can show circumstances which relieve from the performance of contracts generally, and unexpected emergencies in its business would not be sufficient to excuse it."

The Court added:

"Here, however, the claim is not based on a contract, but on the ordinary public duty of the carrier to receive and transport promptly all freight offered."

It is clear that the Court did not have in mind the question now presented as to the validity of the special agreement to furnish cars. Doubtless, but for Section 4842, the contract would have been enforceable as applied to intrastate shipments. This matter was not before the Court and was not discussed. Of course, the Court's reference was to an enforceable contract and what was said was intended to emphasize the difference between the general obligation of a carrier and its obligation under a special enforceable contract.

So in Mathis v. Railroad Co., 65 S.C. 271;43 S.E., 684; 61 L.R.A., 824, no question was suggested or discussed as to the enforceability of a special agreement to furnish cars at a stated time.

These authorities clearly recognize a material distinction between the case of an ordinary shipper requiring shipping facilities and that of a particular shipper suing for the failure of the the carrier to comply with an express enforceable contract to furnish such facilities. It is lucidly developed in the case above cited from the Supreme Court of the United States (Davis v. Cornwell, 264 U.S. 560;44 S.Ct., 410; 68 L.Ed., 848):

"The agent's promise that the cars would be available on the day named was introduced to establish an absolute obligationto supply the cars, not as evidence that the shipper had given due notice of the time when the cars would be needed, or as evidence that the carrier had not made reasonable efforts to supply the cars. The obligation of the common carrier implied in the tariff (and, I interpolate, under its common-law public relation) is to use diligence to provide, upon reasonable notice, cars for loading at the time desired. A contract to furnish cars on a day certain imposes a greater obligation than that implied in the tariff. For, under the contract, proof of due diligence would not excuse failure to perform. * * * The contract to supply cars for loading on a day named provides for a specialadvantage to the particular shipper, as much as a contract to expedite the cars when loaded. It was not necessary to prove that a preference resulted in fact. The assumptionby the carrier of the additional obligation was necessarily apreference."

In Chicago, etc., R. Co. v. Kirby, 225 U.S. 155;32 S. Ct., 648; 56 L.Ed., 1033, Ann. Cas., 1914-A, 501, the plaintiff sued upon a special contract to expedite the shipment of horses by making a certain connection at a certain point with a fast stock train known as the "Horse Special," so as to reach destination by a certain time. There was no dispute as to the express agreement as stated, but the carrier insisted that it was in violation of the Interstate Commerce Law in providing for a preference or advantage to the particular shipper and other shippers who had no such contract. This contention was sustained by the Court, which declared:

"The implied agreement of a common carrier is to carry safely and deliver at destination within a reasonable time. It is otherwise when the action is for a breach of a contract to carry within a particular time, or to make a particular connection, or to carry by a particular train. The railroad company, by its contract, became liable for the consequence of a failure to transport according to its terms. Evidence of diligence would not excuse. If the action had been for the common-law carrier liability, evidence that there had been no unreasonable delay would be an answer. But the company, by entering into an agreement for expediting the shipment, came under a liability different and more burdensome than would exist to a shipper who made no such special contract. * * * The shipper, it is also plain, was contracting for an advantage which was not extended to all others, both in the undertaking to carry so as to give him a particular expedited service, and a remedy for delay not due to negligence. * * * It is also illegal because it is an undue advantage in that it is not one open to all others in the same situation."

"The fact that carriers are instruments of intrastate commerce, as well as interstate commerce, does not derogate from the complete and paramount authority of Congress over the latter, or preclude the federal power from being exerted to prevent the intrastate operations of such carriers from being made a means of injury to that which has been confided to federal care. Whenever the interstate and intrastate transactions of carriers are so related that the government of the one involves the control of the other, it is Congress, and not the State, that is entitled to prescribe the final and dominant rule, for otherwise Congress would be denied the exercise of its constitutional authority, and the State, and not the nation, would be supreme within the national field." Houston, etc., R. Co. v. United States,234 U.S. 342; 34 S.Ct., 833; 58 L.Ed., 1341.

"While these decisions sustaining the federal power relate to measures adopted in the interest of the safety of persons and property, they illustrate the principle that Congress, in the exercise of its paramount power, may prevent the common instrumentalities of interstate and intrastate commercial intercourse from being used in their intrastate operations to the injury of interstate commerce." Id.

"Nor can the attempted exercise of state authority alter the matter, where Congress has acted, for a state may not authorize the carrier to do that which Congress is entitled to forbid and has forbidden." Id.

"The authority of Congress extends to every part of interstate commerce, and to every instrumentality or agency by which it is carried on; and the full control by Congress of the subjects committed to its regulation is not to be denied or thwarted by the commingling of interstate and intrastate operations. This is not to say that the nation may deal with the internal concerns of the State, as such, but that the execution by Congress of its constitutional power to regulate interstate commerce is not limited by the fact that intrastate transactions may have become so interwoven therewith that the effective government of the former incidentally controls the latter. This conclusion necessarily results from the supremacy of the National power within its appointed sphere." Minnesota Rate cases, 230 U.S. 352;33 S.Ct., 729; 57 L.Ed., 1511; 48 L.R.A. (N.S.), 1151, Ann. Cas., 1916-A, 18.

Considered as a case either of interstate commerce or as intrastate commerce, it is clear that the contract in question offends in the one case the federal laws, and in the other the statute law of South Carolina.

The complaint should show whether the intended shipments were interstate or intrastate commerce, or partly of each character; it also should show whether the defendant was engaged in interstate as well as intrastate commerce.

The judgment of this Court should be that the appeal be dismissed, and the case remanded to the Circuit Court, with leave to the defendant to move for an order requiring separate statements of the alleged causes of action, and that they be made definite and certain, and to demur or answer as it may be advised.

MR. CHIEF JUSTICE WATTS concurs.