Alsop v. Southern Express Co.

Avery, J.

— after stating the facts: This controversy depends upon the construction given to section 1964 of The Code, which is as follows: “Agents or other officers of railroads and other transportation c ¡mpanies, who.-e 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 by any person refusing to receive such freight, shall be liable to a penalty of $50, and each article refused shall constitute a separate offence.”

The plaintiff tendered to the defendant’s agent at Halifax (a regular station on the Wilmington and Weldon Railroad line, from which the defendant company shipped freight and money) $70 in money for shipment to Battleboro, another station on said line of railway, at which the defendant company had an office and an ajient, and the agent refused to receive it, because the company had ordered its agents not to receive money except on the same day prior to the arrival and departure of trains going in the direction of the point to which the shipment was destined. The tender was made at 2 o’clock p. M., and a train carrying express freight had passed at 12:55 p. m. on the same day. According to the schedule, the next train, by which the defendant shipped money and freight, would pass on the next day at 12:55 p. M.

If the parties had not so agreed, the law would have determined, that money was an article of the nature and kind usually received by express companies for transportation, and, moreover, that it was the peculiar business of corporations of this character to carry money and small but valuable packages. Southern Express Co. v. Railroad, 5 Myers’ Fed. Dec., § 1511. While express companies, as declared by Justice Miller (Southern Express Co. v. Railway Co.), do not carry bulky freight, it is not the business of railway companies to carry money, and the latter cannot be held liable for its loss, while being transported in the trunk of a passenger, beyond the amount which a prudent man would deem proper and necessary for travelling expenses. Jordan v. Fall River Railroad Co., 5 Cush., 69. So it is peculiarly the business of express companies to carry and collect money along the lines of our railways

The meaning of the portion of section 1964 of The Code, that is material to the settlement of this controversy, could not be plainer; if by dispensing with verbiage that is unnecessary, because applicable to other corporations, it should be summarized thus: “ Agents or officers of express companies shall receive money, whenever tendered for shipment at a regular station, where such companies have agents and are accustomed to receive goods for transportation.” If we adopt this fair and reasonable interpretation of the language of the law, it would only remain for the Court to decide whether the regulation with regard to the hours of business is reasonable, and one that would be sustained as within the purview of the powers of the company.

When we had banks issuing bills under charters granted by the State, they were required to redeem their bills when tendered with gold or silver coin, but the Courts construed the requirement to mean when offered for redemption within such business hours as the banks had a right to prescribe. But it. has been held that these hours must be reasonable and adapted to the peculiar nature of the business that the corporation is transacting with the public in general. In Marshall v. Express Co., 7 Wis., 1, the Court held, that though a bank might prescribe hours of business from 9 o’clock a. m. to 4 o’clock p. m., yet they could not compel an express company to conform strictly to such hours in the delivery of money, and that a tender to the bank, of money packages, at 5 o’clock p. m., would be good, if the jury found that a reasonable hour for making it. In the same case, the Court says further: " It was, therefore, very proper for parties to prove, and the jury to consider, the usual mode of doing the particular business in question (that of receiving and forwarding packages by express) in reference to the time of the arrival and departure of trains, with which the consignor, consignee and carrier in this case are shown to be familiar. Because notes due the bank on a particular day, must be paid before the usual hour of closing the bank on that day, it by no means follows that a mechanic, making repairs on its building, must quit work at that time, or that he must present his bill within the prescribed period.” While granting the power of the banks to make reasonable regulations, generally, they could say further, “ The rules prescribed and the hours of business designated must be reasonable' and adapted to the exigencies of the particular business in reference to which they are established.” Such was the view of the common law, presented with irresistible force and great clearness by the learned Judge who delivered this opinion, now cited as a leading case, upon the* right to establish hours of business, and upon the question, whether, when prescribed, the law will enforce conformity to them, as reasonable, on the part of other persons and corporations dealing with the framers of such regulations.

It will be noted that the Court there held that a tender at a reasonable hour, and a refusal to receive bjT the bank, relieved an express company of the responsibility of insurers, and changed their relation to the bank to that of a mere mandatory, liable lor gross negligence only, though the teller of the bank to whom the money was offered, declared that his bank had a regulation as to hours, and refused to receive it because of such rule, and because the cashier was absent and had the key to the safe. But in the face of a statute requiring them to receive money “whenever tendered,” the defendant company’s agent should not be allowed to meet the plaintiff, who comes to deal with him by invitation, and decline to receive his money for shipment, because of a regulaiion of his company, declared reasonable “ under existing law.” Such a rule would enable a defendant company, by late receipts and speedy delivery, to rid itself of the responsibility and reap the awards of its work with the minimum of risk at both ends of the line.

It is clearly a question for the jury, under the instructions of the Court, in cases like this at bar, as it was in that, to determine, whether looking to the custom of business men generally, at the particular place (here, Halifax) as to hours of repose and times of taking meals, the tendei', (at 2 o’clock p. m.) was made at a reasonable hour. The most liberal construction would not allow the Courts to limit the operation of the words “ whenever tendered” by supplying any other ellipses after them than “ within the usual hours adopted by the public for the transaction of such business, at the place where the tender is made.” This rule avoids the inconvenience of offers of goods at midnight or at mealtime, while it steers clear of the other extreme of neutralizing the force of the whole enactment, by holding that the words “under existing laws,” in the next clause of the section, limits the time of tender as well as of forwarding, and that the old common law, governing the receipt of goods by boats and wagons, still exists and is applicable to-day to these gigantic corporations.

The study of the several statutes relating to the receipt and shipment of goods by corporations, will shed further light upon the legislative intent in enacting section 1964 of The Code. By the Act of 1871-72, ch. 138, §35 (The Code, §1953) it was prescribed that railroad companies should furnish sufficient accommodations for such freights and passengers as should, “within a reasonable time previous thereto, be offered for transportation,” and should be liable in damages to the party aggrieved for neglect or refusal to provide such means of transportation. Subsequently, the Legislature seems to have realized that the requirement to furnish accommodations within a reasonable time was but a reaffirmance of the common law (leaving the Courts to say what time was reasonable), and, therefore, passed the Act of 1874-75 (The Code, § 1766) fixing the limit of delay in shipment at five days after delivery by the consignor. This law was pronounced constitutional in Branch v Railroad Co., 77 N C., 347, and railroad compa ties were held liable for the penalty for delay in shipping freight, as prescribed in that section. Then it was (when the opinion was rendered in Branch v. Railroad, Co., in the year 1877) that the discussion arose as to the right of a consignor to compel a railway corporation to receive freight when offered for shipment, and store it in its warehouse till cars could be procured to transport it.

The Act of 1879 (The Code, §1964) was passed to meet the suggestion that the ancient principal, laid down as applicable to the cumbrous old conveyances two hundred years ago, still survived and conferred on the railroad companies the power to compel the shipper to camp with his wagon at the station, and guard his goods till the last hour of time fixed by law, and receive them only when the train was on the eve of departure. But the statute was so drawn as to include hot only railroad companies and steamboat lines under the general description, but also “other transportation companies, whose duty it is to receive freight,” and to require them to receive “ all articles of the nature and kind received by such company for transportation, whenever tendered,” thus plainly indicating a purpose to include express companies, because they claimed the exclusive right to transport money and goods of certain kinds

The manifest intent of the Legislature was to force all corporations, coming under the description in the statute, to take goods, when oll'ered for shipment at a regular station, with the full measure of liability growing out of its.'custody, even if they should not be shipped till near the expiration of the five days, and then fonvard them under existí;/ g laws, fixing the legal relations of consignor and consignee, and the duties and liability of the carrier company and its connecting lines. Evidently the evil intended to be remedied was the refusal to take goods or money immediately, when offered for shipment to an agent of one of these companies, and the history of the legislation in aid of shippers but adds emphasis to the unmistakable expression of this purpose.

But the interpretation contended for, that the words “under existing laws” should be construed as qualifying the words “ whenever tendered,” instead of the word “for-’ ward ” only, would lead — if the common law is correctly interpreted by defendant’s counsel in connection with the statute — to the strange conclusion that the obligation of an express company to receive money tendered for shipment remains now just what it was before the act of 1879, and the company can, under regulations declared reasonable by the Courts, still fix the hour of receipt, just as it was before, and thus render nugatory by their rules the provision of the law imposing a penalty. Railway companies are inseparably connected with other transportation companies in the act, and, therefore, it is just as competent for the Courts to declare a regulation that compels a consignor to hold his cotton in his wagon for four days, awaiting the arrival of freight cars, to be reasonable and lawful, as one that forces a person to retain and guard his money till before the departure of a train on the next (lav. If it is unlawful to force one of these corporations to place in its office or warehouse goods of the nature that it is accustomed to carry, in violation of its regulations, because of the liability incident to its receipt, the rule must apply equally to all others comprehended under the description contained in the section, and clothe all with the power to repeal or modify the law by such reasonable rules as would prove sufficient to obviate the penalty.

But it is further contended that, if the companies comprehended under the section in question do not formulate any rules to govern their agents in the receipt of freight, the principles of the common law would apply to them. And thus, under this view, the same satisfactory result would be reached by the defendant, if it be held that the law of to-day, applicable to this new species of transportation agency, which permeates the world with its officers and agents, everywhere delivering money, jewels and other valuable goods, is the same, that governed the receipt of packages by a carrying cart in the time of Bracton, or the tender of goods to a vessel sailing from Liverpool two hundred years ago.

If, for the sake of argument, it be admitted that the General Assembly meant to inaugurate no change, but simply to publish the vain and empty declaration that transportation companies would hereafter, just as heretofore, receive freight under existing laws,” and, consequently, under any regulation made by the companies and adjudged reasonable by the Courts, would it follow, that the Courts would declare the rule under which a wagoner engaged in •carrying goods could compel his customer to wait till the horses should be hitched, reasonable and applicable to express companies? The result of giving the sanction of the Court to such a rule, would be that these companies could induce an individual, by inviting his patronage, to come to one of their regular stations to entrust, his money to their care, and then compel him to stand guard over his treasure a whole night in order to protect the company from a risk that it can better afford to incur than the customer. But in oider to a proper discussion of this view of the subject, it is necessary to understand that the nature, powers and liabilities of express companies have been defined by the Courts.

An express company is a species of common carrier to which have been accorded privileges, and which, from the nature of i's business, incurs great responsibility. These companies originated in the necessity, when the growing commerce of the world began to be conducted through the agency of railroads and steamboats, for securing the safe carriage and speedy delivery of small but valuable packages of goods and money. Witbeck v. Holland, 45 N. Y., 13, Am. & En. Cyclopaedia of Law, 781-784; 5 Myers’ Fed. Dec. Carriers, sec. 1511. They are essentially different from railway companies, not only in the fact that the latter carry more bulky freight, but they collect money and do other things, that would be held ultra vites if attempted by a railroad company. 5 Myers’ Fed. Dec. Carriers, 1509. It has been held that a railroad company could not refuse to carry for an express company, according to the peculiar methods of their business, and would be compelled by the Courts to admit the messengers of all these companies to its cars with its safes on equal terms, and without inspection of their safes. 5 Myers’ Fed. D. c. Carriers, § 1508; ibid, §1519. If a railroad company engage in these branches of the express business, authorized by their charters, they must not deny to express companies equal privileges with themselves as to that business. 5 Myers’ Fed. Dec. Carriers, § 1508; ibid., §§ 1515 to 1511; Gomblos v. Philadelphia, &c., 9 Phil., 411; Texas Ex. Co. v. Texas, 6 Fed. R., 426 ; Messenger v. R. R Co., 18 Am. R., 754 ; Express Co’s v. R. R. Co’s, 3 Am. & En. R. Cases, 594.

Apart from the construction of our statute, it is the duty of the express companies to receive all goods offered for transportation, upon the payment or tender of their charges, but prepayment will be considered waived if not demanded. N. J. Steam N. Co. v. Bank, 6 Howard, 344. They are-required, too, to have adequate facilities within a reasonable time, and cannot be exonerated for delay on account of increased expense, though not foreseen and not entirely unreasonable. Condiet v. R. R. Co, 54 N. Y., 500. An express company could, in the absence of a statutory requirement, refuse goods on account of an unusual rush of business, especially when the goods offered for transportation are-of a perishable nature. Hare on Contracts, 155. But these are the rules without reference to any such enactment as that before us for construction.

When goods are received by an express company without any special or valid contract limiting its liability, it insures the safe and speedy personal delivery of the articles received at the place of destination, if on its route, or, if not, then at the end of its route. Witbreck v. Holland, 45 N. Y., 13; Bishop on Con, §§ 432, 591, 596. Even if the goods are placed in a warehouse, if not shipped immediately the liability as insurers begins on the receipt for them. 7 Am. & En. Cy. of Law, 546, 558. A high degree of care is required of an express company in the delivery of goods. They must deliver them as soon as practicable after they reach their destination, within business hours, to the consignee at his residence or place of business, unless he authorize or direct delivery to be made at some other place within reasonable distance of the station. Marshall v. Am. Ex. Co., supra; Witbreck v. Holland, 45 N. Y., 13. After the consignee receives notice from the company of the arrival of his goods, be is not bound to call at the office for them, but need only notify the company of his residence, place of business, or where he may be found, and the liability of the company as insurers remains till delivery, or tender of the goods, at the place designated, within business hours, and failure by consignee to receive or pay charges. Witbreck v. Holland, Pr. (N. Y.), 273; Am. & En. Cy. of Law, pp. 567 to 570. If in the interim between its arrival at its destination and the delivery, as the law requires, a package of mone)^ should be stolen from the agent, the company would be liable to the consignee. Supposing' that a friend had sent by express one thousand dollars from Battleboro to the plaintiff Alsop at Halifax, and the latter lived several miles out of the town, we can readily see that it might require more than twenty-four hours for the company to rid itself of liability as a common carrier, and meanwhile it would be strangely negligent if it failed to provide a safe for the security of valuable property and money received for its customer and held as an insurer.

With this review of the relation that the defendant sustains to the public, under other circumstances necessitating the provision at all offices where money is received of the means to make it safe and secure from thieves till delivery,' it is submitted, that if the Court is to determine (leaving the statute out of view) whether a citizen, who comes from the country unprepared to protect his property, shall be required, rather than a company provided with safes, servants and secure rooms, to incur the risk of the custody of a sum of money, it should be guided by reason and look to the situation of the parties and the preparation that the law intends shall have been made by each or either for assuming the responsibility. Experience has shown that the principles of the common law are pliable, and a few fundamental rules have been expanded so as to furnish the basis of important branches of the law governing us at this day. This is notably true as to corporations. But while the ancient landmarks of the law are worthy of veneration, and should be examined" with conservative care in determining how they meet the exigencies of a progressive age, we should not be so subservient to precedent as to blindly follow it when no longer sustained by reason. It strains the faith of the young student when he attempts to follow Lord Coke in his discoveries of all the hidden diversities in the text of Lord Lyttleton, and when we profess to find, in the mouldy black-letter volumes of past centuries, a principle that, with prophetic ken, was formulated' to meet and solve a problem arising out of the adjustment of the relations between ihe people and one of the greatest and most useful corporations in the world, we must, if we would avoid shocking the common sense of mankind, find a rule founded on reason. The fact that a captain and crew of a vessel, according to the English authorities, had the right, in the thirteenth year of William III, to refuse to receive freight offered for shipment till the vessel was ready to sail, furnishes no analogy that can be safely applied to govern the relations of the plaintiff and defendant. The case of Lane v. Cotton, 1 Lord Raymond, heard at Easter Term, 13 William III, decided this principle, and is the only authority cited in Story on Bailments, § 508, to sustain the rule announced by the author.

It may have been just at that remote period to require the shipper, who had protected his goods on the way to the point of delivery, to continue his oversight over them rather than force a driver, whose attention was required to be devoted to the preparation for his journey, or the master of a vessel, who, with his crew, was engaged in repairing and inspecting it and laying in supplies for a voyage, to take them prematurely, for that would have made it requisite for them to prepare a place for storage, which they need not otherwise provide. But an express company, as we have seen, incurs, from its nature, such liabilities as to require a place of storage at every station, so guarded as to insure the safety of property consigned to its care, and it is not unreasonable to require the same care of money tendered for shipment during business hours. Cessante ratione, cessat et ipsa lex.

If, therefore, the statute were not written in plain terms, and if the history of legislation on this and kindred subjects did not indicate that the manifest meaning of the language was what the Legislature intended to express, still we ought to bring this question to the touchstone of reason, based upon a broad view of the condition of the parties interested, and decide it as an original one — of the first impression — between a new and important public agency and a citizen, just as the English Judges considered the question involved in Mars v. Slue (cited in Lane v. Cotton, supra), and bearing in mind that it is more just to impose a risk upon a body politic abundantly prepared to incur it, than upon an individual who has placed his goods in peril on the invitation of the corporation.

It is admitted that railroad companies have the power to provide different cars for excursionists, who purchase tickets at reduced rates, from those occupied by passengers paying more per mile, and, also, that they have the right to assign a separate car for colored people, as decided by this Court; but should our Legislature pass.a law prohibiting, in plain terms, such discrimination, the Courts would be compelled to enforce the law, if not pronounced unconstitutional. Such a law could not be ignored utterly in a discussion of these subjects after its passage.

It seems safe, therefore, to conclude that:

I. The first clause of section 1964 is in itself a full and complete expression of the Legislative intent that goods shall be received whenever tendered, and that the language cannot, by any accepted rule of interpretation, be limited further than to require that the tender shall be made during hours that cannot be reasonably claimed, according to the usages of business men at the place of tender, for repose or for taking meals. 4

2. The words “under existing laws” can be construed to qualify the word “ forward,” and to mean that, at least when the law is applied to railroad companies, the goods shall be shipped within five running days from delivery (as required by The Code, § 1960), and subject to the law fixing the relations of consignor and consignee, the carrier and its connecting lines, while the construction contended for would give the statute no effect, but leave the law as it was before its passage.

3. If no statute had been passed, the Courts could not, when the relations of plaintiff and defendant were so widely different from those existing between the carrier of the last century and his customer, have declared that an express company could not be compelled to receive goods till the hour of shipment, in conformity to the ancient rule, or that the transportation company could arbitrarily determine, by regulations prescribed for the government of its agents, exactly how it would, ex gratia, or with a view entirely to its own convenience, allow a departure 'from the old rule by giving further time.

There is error, as the defendant did not rely affirmatively on the defence, or insist on a finding that the tender was made at a time other than in business hours. The judgment on the facts found must be for the plaintiff.

Error.