Mobile & Ohio Railroad v. Brandon

53 So. 957 | Miss. | 1910

Smith, J.,

delivered the opinion of the court.

Appellee shipped a lot of household goods from Indianola, Mississippi, a point on the Southern Railroad, to Gibson, Mississippi, a point on appellant’s railroad. The goods were delivered to appellee by appellant in a damaged condition. Thereupon áppellee requested appellant in writing to settle this damage, stating the amount thereof to be sixty dollars. Ninety days having-expired without settlement having been made, this suit • was instituted, resulting in a judgment in the court below for appellee in the sum of seventy-five dollars, being fifty dollars actual damage and twenty-five dollars statutory penalty for not settling the claim within ninety days. The statute providing for this penalty is chapter 196’ of the Laws of 1908’, and is as follows: “Railroads, corporations and individuals engaged as common carriers in this state are required to settle all claims for lost or •damaged freight which has been lost or damaged between two given points on the same line or system, within sixty days from the filing of written notice of the loss or damage with the agent at the point of destination; and where freight is handled by two o,r more roads or systems of roads, and is lost or damaged, claims therefor shall be settled within ninety days from the filing of written notice thereof with the agent by consignee at the point of destination. A common carrier failing to settle such •claims as herein required shall be liable to the consignee for twenty-five dollars, damages in each case, in addition to actual damages, all of which may be recovered in the same suit; provided that this section shall only apply when the amount claimed is two hundred dollars or less.”

One of the assignments of error brings under review the 'action of the court in refusing appellant the following instruction: “The court charges the jury that, while plaintiff includes in her suit an item of twenty-five dollars statutory penalty, yet the court instructs you that if you find that the damage to her property is less than sixty dollars, the account demanded of the defendant and sued for, then you will not allow any statutory penalty, but exclude the same from your verdict.” Appellant’s contention is that the statute must be construed to impose a penalty only in cases where the plaintiff recovers the full amount demanded, and unless this is done the .statute would violate the fourteenth amondment to the Federal Constitution, in that it denies to carriers the •equal protection of the laws. The statute contains no such limitation upon the right to recover the penalty, and we cannot ingraft such upon it. The statute, however, does not violate ^his amendment to the Federal Constitution. Its object is “not to penalize a carrier for merely refusing to pay a claim within the time required, whether just or unjust” (Best v. Seaboard Air Line R. R. Co., 72 S. C. 479, 52 S. E. 223), and, “further, it must be remembered that the purpose of this legislation is not primarily to enforce the collection of debts, but to compel the performance of duties which the carrier assumes when it enters upon the discharge of its public functions.” Seaboard Air Line R. R. Co. v. Seegers, 207 U. S. 78, 28 Sup. Ct. 30, 52 L. Ed. 108.

One of the duties of the carrier is to pay to the party «entitled thereto the actual damage sustained by him on account of the loss of or damage to freight while in its possession. The penalty imposed is for the failure to perform this duty within sixty days, or ninety days, as the case may be. The claim contemplated by the statute is the actual amount due, and not necessarily the amount claimed by the party suffering the damage. All the carrier is required to do in order to be relieved of the penalty is to pay or tender within sixty or ninety days to the party entitled thereto the amount actually due. Should such tender be made and refused, the penalty cannot be collected. The amount of damage sustained can be as easily ascertained by the carrier as by the claimant; in fact, in the language of the Supreme Court of the United States, in Seaboard Air Line R. R. Co. v. Seegers, supra: “The matter to be adjusted is one peculiarly within the' knowledge of the. carrier. It receives the goods, and has them in its custody until the carriage is completed. It knows what it received, and what it delivered. It knows what injury was done during the shipment, and how it was done. The consignee may not know what was in fact delivered at the time of the shipment, and the shipper may not know what was delivered to the consignee at the close of the transportation. The carrier can determine the amount of the loss more accurately and promptly, and with less delay and expense, than any -one else, and for the adjustment of loss ■ or damage to shipments within the state forty days cannot be said to be an unreasonably short length of time. It may be stated as a general rule that an act which puts in one class all engaged in business of a special and public character, requires of them the performance of a duty which they can do better and more quickly than others, and imposes a not exorbitant penalty for a failure to perform that duty within a reasonable time, cannot be adjudged unconstitutional as a purely arbitrary classification. ’ ’

No tender having been made of the amount actually due, the court committed no error in refusing this instruction. There is no merit in the other matters complained of. ’

The judgment of the court below is therefore affirmed.

Affirmed.