Avinger v. South Carolina Railway Co.

The opinion of the court was delivered by Mr. Chibe Justice Simpson. The character of this action and of the defence will be seen from the complaint and answer, copies of which are hereto appended. At the close of plaintiff’s testimony the defendant moved for a non-suit, which was refused, his honor saying that “it is by no means clear what are the rights of the railroad company over the land of the landowners over which this branch runs. It might be that under the statute, they had no right to condemn that land. The difficulty with me is, that if the railroad is there at all, is it not there under the organic law of its being ? and if there, is it not forever estopped from saying that it has exceedod its charter pow'ers ? I am inclined to think that, without hold [275] ing themselves out as common carriers at all, they were common carriers to Lamb’s. Otherwise they had no right to be there. They ceased to be a corporation at Lamb’s. I must therefore refuse the motion for non-suit.” The case then proceeded, when, at the conclusion of the testimony, several requests to charge, both from the plain tiff and defendant, having been made, his honor charged as follows : (See charge, with defendant’s (appellant’s) exceptions appended.) Upon an examination of the testimony reported in the “Case,” we have found that there was enough offered to carry the case to the jury, and therefore there was no error in overruling the motion for non-suit. Nor was there error on the point raised in the first exception. While it is true that at common law and in the absence of charter or statutory regulations to the contrary, a common carrier may discriminate as to rates, so that no unreasonable charge is made, yet he must carry for all. Because it is a leading principle of the common law, applicable to all common earners, that they are bound to carry for all, and for a reasonable remuneration. In Johnson v. Pensacola & Perdido R. R. Co. (16 Fla., 623), the following language was used, which succinctly embodies the common law doctrine on this subject, to wit: “That as against a common or public carrier, every person has the same right, that in all cases, when his common duty controls, he cannot refuse A and accommodate B; that all, the entire public, have the right to the carriage for a reasonable price at a reasonable charge for the services performed, and the commonness of the duty to carry for all, does not involve a commonness or equality of compensation or charge; that all the shipper can ask of a common carrier is that for services performed he shall charge no more than a reasonable sum to him.” This principle was recognized and enforced in our case of Ex parte Benson & Co., 18 S. C., 42, 43. See also cases cited therein. The argument of appellant’s counsel, on the above exception, seems to have been directed entirely to the point that there might be discrimination as to rates of transportation, as laid down above; but the charge of his honor, assailed in the first exception, did not conflict with this principle. The judge said nothing as to rates. His remarks [276] were confined to persons, and he ruled that a railroad was hound to carry for all, making no discrimination as to the right to ship. In this, as we have said, there was no error. Chitty on Contracts (11th ed.). 682, et seq.; Kent Com., Ex parte Benson Co., supra. The 2nd exception assigns error because his honor charged : “That the road of the South Carolina Railway Company includes the road in itse by said company, whether owned or operated under a contract or lease by the South Carolina Railway Company, and if the jury find from the evidence that the road from Charleston to Lamb’s Station was, during the times of discrimination complained of, in use by the South Carolina Railway Company, then they are thereon responsible for discrimination and damages therefor ,as for any other part of their road.” The main question below was, whether the defendant was a common carrier as to the branch to Lamb’s. If it was, then the common law doctrine as to liability of common carriers, as announced above, applied to the case; but the preliminary and vital question involved was, whether the defendant was a common carrier on said branch. This, it seems to us, was a question of fact, and consequently a question for the jury. What constitutes a common carrier, and how and when one can become such carrier, are questions of law as applied to.the facts found, as also his responsibility. There can be no doubt that a railroad company organized and chartered for the transportation of goods, merchandise, and other property, is a common carrier, and would be so, independent of any declaration to that effect in its charter; such being the very purpose of its creation. But its character of common carrier can extend only to the road which it may be incorporated to construct or which it may operate by virtue of its charter. No doubt the defendant, under its charter, and the acts referred to by respondent’s attorney, has been invested with power to construct branches to its main track ; and wherever this may be done for the purpose of transportation, it will become under said charter a common carrier as to such branches, subject to the law governing carriers. s So, too, it has authority to operate other roads by contract or lease, for transportation purposes, and whenever it may do so, it becomes a common carrier upon [277] such roads. But when a question arises whether or not it has become a common carrier as to such branch or road, this must depend upon the testimony, bearing upon the fact, whether the alleged road is operated for the purposes suggested, and not simply whether it has been used or is “in the use” of said company for any purpese. Suppose, for instance, that the defendant owned a body of timber land some miles from its main track, and that for its own purposes in procuring cross-ties, stringers, and other lumber for repairs, it should construct a tract to said lands using its engines and cars thereon for the transportation of said lumber to the main track, and for no other purpose, could it be claimed that the company would become a common carrier thereon, and be bound to receive and transport all freight that might be offered? We think not. The question in such eases must turn on the object and purpose of the branch constructed and the road operated, and this is a question of fact, dependent not simply, as we have said, upon the use, but upon the character of the use. We think, therefore, that his honor was in error when he charged the jury, “that if they found from the evidence that the road from Charleston to Lamb’s Station was, during the times of discrimination complained of, in use by the South Carolina Railway Company, then they are thereon responsible for discrimination and damages therefor, as for any other part of their road.” So, too, we think his honor enlarged the test of becoming a carrier too much in the propositions excepted to in the third and fourth exceptions, in which he ruled that if defendant maintained and operated said road, or run its own engine and cars upon it, whether under its charter it had the right to construct it or not, it would become a common carrier thereon, “with all the liabilities to the public which attend the main lines.” True, these general propositions were accompanied with the statement, that if goods were carried for one, they must be carried for all, and if passengers were carried at all, all alike must be carried; which latter statements were correct, provided the position of carrier had once been established; but the propositions of law likely to mislead the jury preceded these statements, where his honor charged that maintaining and operating the road, running its [278] engine and cars upon it, made the defendant a common carrier thereon, without regard to the purpose and object of thus maintaining and operating it. Upon the facts of this case the jury may have been warranted in finding the defendant a common carrier to Lamb’s Station. Of this, however, we intimate no opinion; we only decide that his honor’s charge was erroneous, in enlarging too far the facts to be considered by the jury as determining the question whether the defendant had become a common carrier to said station, or rather in holding as matter of law, that the facts mentioned, if found by the jury, would establish the position of a common carrier in the defendant. There was no error in refusing defendant’s requests, as found in exceptions five and six. Both of these requests involved the holding, on the part of the judge, the fact that the position of a common carrier had not been established against the defendant, which, as w'e understand the case, was a question entirely for the jury, dependent upon-the force and effect of the testimony. And we may add, that as to the sixth exception in regard to punitive or vindictive damages, the rule laid down by his honor was unobjectionable. It is the judgment of this court,'that the judgment of the Circuit Court be reversed. Mr. Justice McIver and Mr. Justice McGowan concurred in the result.