Pinehurst Peach Co. v. Norfolk Southern Railroad

BrogdeN, J. The demurrer to the original complaint was properly sustained. Therefore, the only question is whether the amended complaint proceeds upon the theory of common-law liability for negligence for failure to furnish cars, or upon damages resulting from the breach of an express contract to furnish specified cars at a specified place on a specified date. Paragraph 10 of the amended complaint alleges that the plaintiff was caused to suffer damage by reason of the wrongful and negligent failure of defendant to furnish cars within a reasonable time and in accordance with the order of the plaintiff. The order of plaintiff, as set out in both the original and amended complaint, called for a specified number of cars, to be furnished at a specified place on a specified date. In such cases the law has been declared in Davis v. Cornwell, 264 U. S., 560, 68 Law Ed., 848, in which case the Court said: “The transportation service to be performed was that of common carrier under published tariffs; not a special service under a special contract. . . . The agent’s promise that the cars would be available on the day named was introduced to establish an absolute obligation to 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 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. See, also, Strock v. Southern Ry., 140 S. E., 470; Williams v. St. Louis-San Francisco Ry. Co., 274 S. W., 935; McLemore v. R. R., 199 N. C., 264. *179 Tbe plaintiff baying admitted tbat tbe cars ordered were to be used in shipment of peacbes in interstate commerce, it is therefore tbe opinion of tbe Court tbat tbe Davis case, supra, is determinative of tbe controversy. Affirmed.