Twitty v. Southern Railway Co.

Brown, J. The defendant admits its liability for negligence in the brief filed, in these words: “The defendant has never pretended that it is not liable to a penalty and does not now make any such contention.” The defendant contends that the suit was brought under the wrong statute, admitting that it is liable for the penalties denounced in section 2632. [358] It is contended that there was no refusal to receive the freight for shipment. We are of opinion upon the facts agreed that there was a refusal by the agent “to receive for transportation when tendered.” It was the duty of the agent to receive the freight and give a bill of lading for it. That is a “receiving for transportation.” The agent received the freight for storage on January 27 and kept it until February 8, but under a fair interpretation, that is not a compliance with the statute. The fact that the agent did not know the freight rates is no excuse. It is his duty to know them. At least he could readily have telegraphed and ascertained, and need not have refused to give a bill of lading on that account. We think under the authorities and the facts agreed the suit is brought under the proper statute. Carter v. Railroad, 129 N. C., 213; Currie v. R. Co., 135 N. C., 535. Affirmed.