after stating tbe facts: In tbe complaint some reference is made to an agreement entered into by tbe Wilmington & Weldon Railroad Co., to whose rights and contracts tbe defendant succeeded, and tbe predecessor of plaintiff in regard to hauling logs. Tbe cause was beard and determined, as appears -from tbe record, upon tbe sole question whether, during tbe periods named in tbe complaint, defendant company demanded and received payment from plaintiff a rate of freight in excess of that charged other persons or corporations for tbe same service under substantially similar conditions. Tbe learned counsel in bis brief says: “Tbe action is not in tort, but
ex contractu.
Plaintiff charges that tbe defendant required it to pay $2.50 per thousand feet for hauling logs in car load lots a distance of forty miles, when defendant bad a regular, established and published rate for other portions of its line * * of $2.10 for the same service and tbe same rates applied at Wilmington for all who would agree to give tbe defendant tbe output of their mills.”j Tbe defendant denied tbe allegations upon which plaintiff’s alleged cause of action is founded. It says further, that assuming tbe law to be as contended by tbe plaintiff, it has not shown by any competent testimony that, at tbe date of shipments made over its road, defendant was charging and receiving from other persons a less rate of freight than that charged plaintiff for a like service in the transportation of like traffic contemporaneous in point of time and under substantially similar circumstances. The record contains exceptions to the ruling of His Honor presenting every phase of these controverted questions. It will be observed that the foundation of plaintiff’s claim is not, that the rate charged plaintiff was, except in so far as it was related to the lower rate charged, unreasonable. The gravamen of the complaint is that the rate was discriminating and by reason thereóf, unlawful. Plaintiff claims that it has a right to demand of defendant, (1) that it haul the logs at a reasonable rate; (2)
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that it haul them at the same rate charged other persons for hauling logs over the same distance at the same time and under substantially similar circumstances. This right, it charges, defendant has infringed and thereby demanded and received for hauling its logs, between the dates named, the amount sued for, in excess of the amount which it was entitled to receive. That in good conscience, defendant should repay this amount and it sues as for money had and received to its use. The agreement referred to in the complaint is eliminated by plaintiff’s averment that it is suing to enforce its right at common law, of which section 3749 of the Revisal is but declaratory, to have equality in rates, etc. It will be observed, as said by
Clark, C. J.,
in
Lumber Co. v. Railroad Co.,
In regard to the exception to the complaint for indefiniteness as to dates, etc., defendant might, if it so desired, have asked for a bill of particulars. Revisal, sec. 494. The ruling of His Honor was correct.
We proceed to consider the other exceptions in the order presented in the brief of appellant, omitting any reference to such exceptions as are not argued, except the forty-fourth. Counsel stated that, with that exception, they were abandoned. The fourth to seventh inclusive, are pointed to the admission of testimony of Mr. Parsley for that his statements were general and did not fix dates of shipment, etc. The plaintiff was, by this testimony, laying the foundation upon which he was seeking to show the character of its business, the number of lines or branch roads of defendant, their terminal points, the number, etc., of mills on such lines, its own dealings with defendant. For those purposes we see no valid objection to the testimony. The sixteenth exception is for that the witness was permitted to testify as to logs shipped from a point in South Carolina to Wilmington, N. C., which was interstate and not within the control of the State courts. We do not perceive how the testimony involved interstate commerce. It was relevant to the issue, and tended to show the manner of dealing by defendant' company with persons shipping logs over its lines coming into Wilmington.
Exceptions 21 to 30 present the question whether for the purpose of showing the discrimination alleged, it was competent to show the rates charged other persons for shipment of logs in carload lots over branches of defendant’s road not *180 coming into Wilmington; for instance Mr. Hines, wbo operated a mill at Kinston, to which logs were hauled from other points on defendant’s road, was permitted to testify in regard to the rates paid for shipping carload lots. Mr. O’Berry, at Goldsboro, was also permitted to testify to the same effect. The question at issue was whether defendant, while charging plaintiff $2.50 per thousand for hauling logs 39 miles from Musteen’s Grossing to Wilmington, was charging other persons $2.10 for the same service under substantially similar circumstances. To give any beneficial or remedial effect to the law, either common law or statute, it must be given a reasonable construction. Certainly to show that in a few cases and within a short period lower rates were given other persons would not establish unlawful discrimination. It is therefore essential to plaintiff’s right to recover for it to show that a regular systematic discriminating rate was given. Nor do we conceive that it is necessary for plaintiff to show that the lower rate was confined to persons shipping logs into Wilmington. If it is made to appear that during the period named the defendant was giving to mill owners at Kinston, Goldsboro or other points on its line, a lower rate than that given to persons living in Wilmington, the conditions being substantially similar, such discrimination would be unlawful. To so construe the law as to permit a railroad to charge a person shipping logs in carload lots to Wilmington, a distance of 39 miles, $2.50 per thousand and to charge a person shipping in the same way over the same distance to other points $2.10 in the absence of any circumstances or conditions justifying the discrimination, would practically nullify the underlying principle upon which it is based. The real and pivotal question is whether the differences in charges are contemporaneous in point of time and under substantially the same circumstances. The purpose of the testimony was to establish this proposition. The principle involved is announced by Blade- *181 burn, in Great Western Railway. v. Sutton, supra: “When it is sought to show that the charge is extortionate as being contrary to the statutory obligations to charge equally, it is immaterial whether the charge is reasonable or not, it is enough to show that the company carried for some other persons or class of persons at a lower charge during the period throughout which the party complaining was charged more under like circumstances. One single act of charging a person less on one particular occasion would not, I think, make' the higher charge to all others extortionate during all that day, week, or month, whatever the period might be. I think it would be necessary to show that there was a practice of carrying for some person or class of persons at the lower rate. But a single instance would be evidence to prove this practice. * * * It would be of the very essence of the ease to prove that the goods were of the same description and came under the same circumstances.” We think that the testimony was relevant and that it was sufficiently definite to go to the jury. The witnesses were asked in regard to rates charged them for longer and shorter distances than that over which plaintiff’s logs were shipped. If this was error, we do -not perceive how defendant was prejudiced by it.
Exceptions 31 to 84 are to allowing Mr. Parsley to testify that he had seen logs moving on the defendant’s branch lines, the objection being that he could not name the dates accurately. The testimony was, in the light of TIis Honor’s charge confining the inquiry of the jury to the dates fixed in the issue, entirely harmless. Exceptions 36 and
31
are disposed of by what is said in regard to exception 16. This disposes of the exception directed to the admission of evidence. At the close of plaintiff’s evidence defendant demurred and demanded judgment of nonsuit, which was denied. Defendant waived its exception to this ruling by introducing evidence. Assuming that plaintiff had intro
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duced testimony which, for tbe purpose of disposing of tbe motion for judgment of nonsuit was fit to go to tbe jury, we are brought to a consideration of defendant’s motion to non-suit at tbe close of tbe entire evidence. Tbis motion involves tbe assumption that plaintiff’s evidence was insufficient, and that nothing has been shown by defendant to aid tbe defective condition of plaintiff’s case. Assuming that plaintiff has introduced evidence fit to be submitted to tbe jury to show that between tbe dates named it paid defendant $2.50 per thousand feet for hauling logs from IVIusteen’s Crossing to Wilmington in carload lots and that during tbe same period defendant gave to other persons a $2.10 rate for hauling logs in carload lots tbe same distance, and that such lower charge was general, that is, a practice was made of doing so, does defendant’s evidence aid tbe plaintiff in showing either that tbe conditions were substantially similar, or if not, whether tbe conditions justified tbe difference in tbe rates ? Mr. Emerson, who was defendant’s traffic manager, testified that be made tbe rates on logs hauled over defendant’s road. He was shown and identified a number of printed tariffs showing rates at a number of points on the road and branches. He testified that there was at no time a rate of $2.10 per thousand feet for logs shipped to Wilmington, a distance of 39 or 40 miles. The only portion of his testimony which could in any aspect aid the plaintiff is the statement in reply to a question by plaintiff’s counsel. “You asked, as I understand it, why it was that we applied a higher rate on logs to Wilmington, N. C., than we applied to other towns over our lines; I will answer that by saying that the revenue received on the product of the logs from the points in Eastern Carolina named in the testimony and for which tariffs have been, filed, enabled us to haul the logs to' the mill at a lower figure than we felt that we could afford to' handle the logs to a mill without getting any of the product. We were prepared to make the same arrangement effective—
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I will change it. We offered that if the product of the logs were shipped out we were prepared to make the same rates effective to the Wilmington mill on the logs on which we received the product as were applied to any other mill on the line of our road.” Mr. Emerson, in reply to another question, testified: “The Hilton Lumber Company paid no more for logs they desired to move than would be paid by the Cape Eear or Angola Lumber Company. * * * We have in effect between certain points on the Wilmington & Weldon Railroad, where logs are moving to mills and where we receive for shipment the lumber cut from said logs, rates as per the following table: HO miles and over 30, $2.10.’ Tou will note that these rates are somewhat lower than the rates we ■are charging on logs moving to Wilmington and other points where we do not receive a second movement in the way of lumber cut from the logs moved.” The date fixed by witness is November 12, 1900. He does not state when this rate went into effect — “That they did not apply over the entire Atlantic Coast Line.” We omit any reference to the charge of $2.10, which witness said was made by mistake. Assuming that there is sufficient evidence in regard to shipments of plaintiff and of witnesses testifying in regard to shipments from other points to go to the jury, we have, with Mr. Emerson’s testimony, this case, presented upon defendant’s demurrer. Defendant, operating several lines or branches of railroads in Eastern North Carolina, upon which are located several saw mills, deriving their supply of logs over such lines as are convenient to them, maintains a tariff by which it charges in Wilmington $2.50 per thousand feet for carload lots a distance of 39 miles, and mills at other points $2.10 for the same service, the difference being that it handles the manufactured products of the logs thus shipped at points other than Wilmington and was willing to make the same rates effective to the Wilmington mill on the logs of which it handled the product. Thus stated, assuming the
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other conditions to be-substantially similar, is the discrimination unlawful? The question is answered by this court in the defendant’s appeal at the Fall Term, 1904,
supra. Ciarle, C. J.,
says: “The proposition is that a common carrier has a right to charge one person a lower rate of freight than another for shipping the same quantity the same distance, under the same conditions, provided the shipper give the company a consideration (shipping the manufactured lumber subsequently over its line), which its managers think will make good to it the abatement of rate given to such parties. But if this is equality as to the treasury of the company, it is none the less a discrimination against the plaintiff.” The authorities are reviewed in the opinion and we have no disposition to disturb the reasoning or conclusion reached on that appeal. Since the rendition of that decision the Supreme the United State has, in an able opinion, discussed the principles involved in this case and applied them to a correction of the evil of unjust discrimination which goes to the root of the matter; saying that the statute was remedial and to be given a construction which reasonably accomplishes the great public purpose which it was enacted to subserve. “Nor, in view of the positive command of the second section of the act that no departure from the published rate shall be made 'directly or indirectly,’ how can it in reason be held that a carrier may take itself out from the statute in every case by simply electing to be a dealer and transport a commodity in that character. * * * The all-embracing prohibition against either directly or indirectly charging less than the published rate shows that the purpose of the statute was to make the prohibition applicable to every method of dealing by a carrier by which the forbidden result could be brought about.” In an exceedingly strong opinion by
Mr. Justice Doe,
in
McDuffee v. Railroad,
52 N. H., 430 (
We think that the strict construction heretofore given the act by the Federal courts may be modified to conform to and promote the purpose of the legislation — to enforce by appropriate remedies the great common' law doctrine of equality of service by public agencies 'of all kinds. The decision referred to points strongly in that direction. However the courts construe statutes making penal or criminal a violation of the equality of right, when we come to deal with the question, in the enforcement of the civil right of the citizen, we must construe the law so that the right is secured and the remedy for its infringement given. This is the keynote of the decisions, both in England and this country. In
Directors, etc., v. Evershed,
3 App. Cas., 1029,
Lord Hatherly
says: “According to the strict meaning of the Acts of Parliament, as interpreted by the decisions from the very moment that the company charges A a given sum when B, another person, comes to the company to have the same service rendered under the same circumstances, he cannot be charged one farthing more than has been charged A; he can only be charged precisely what the act authorizes the company to charge, namely, that which has been charged others, and the moment the directors take on themselves to charge less to another person, they must charge less to him too.”
Hays v. Penn. R. Rd.,
12 Fed Rep., 309;
L. E. & St. L. R. R. v. Wilson,
18 L. R. A., 105, note. Defendant says there was no evidence tending to show that at the time it was shipping logs and paying $2.50 rate any other person was shipping
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under similar circumstances at tbe $2.10 rate. Mr. Parsley swore to tbe payment of tbe $2.50 rate by defendant. It appears that mills were being operated, receiving logs over defendant’s line at different points during tbe time named. Mr. Emerson says that defendant was operating these lines, bad a tariff for logs giving tbe basis of it, be says that be was traffic manager. Mr. Hines and others say that they were operating mills, shipping logs over defendant’s line, etc. It is true that no one says that on any given day logs were shipped and tbe $2.10 rate paid, but in view of the well known fact that men do not keep saw mills standing idle or railroads keep cars idle when it can be avoided, nor ship freight without payment therefor, tbe jury may well have found that they were shipping logs over defendant’s lines at tbe rates fixed by tbe tariffs. Mr. Hines says: “We own some timber which came over the Coast Line * * * sawed probably two or three million feet.” Other witnesses testified to the same effect. It would be impossible for any one to recover for discrimination in freights, unless testimony of this character could be received and submitted to the jury. Whether the testimony was true and what reasonable inferences were to be drawn from it was for the jury.
Interstate Comm. v. Ry. Co.,
Upon a careful review of the entire record, we find no reversible error. The judgment must be
Affirmed.