The opinion of the Court was delivered by
Mr. Justice; Carter.
This action was commenced in May, 1925, in the Court of Common Pleas for Orangeburg County, “and is for damages, which, as the complaint alleges, resulting from the breach by the defendant of' an express contract between plaintiff and defendant, and damages from other causes of action as alleged in said complaint, and in which contract, the complaint alleges, defendant was to furnish plaintiff cars
between specified dates for the transportation of logs.” The defendant demurred to the complaint upon the grounds (1) that it did hot state facts sufficient to constitute a cause of •action, and (2) that the Court had no jurisdiction of the subject of the action. The demurrer was heard by his Honor, Judge Wilson, who issued an order overruling the same. The case comes now before this Court on appeal from the order of his Honor, Judge Wilson. The complaint, demurrer, order, and exceptions should be reported.
While I am in accord with the views expressed in the opinion of Mr. Justice Cothran in this case as to the appeal being dismissed and the case remanded to the Circuit Court, with leave to the defendant to move for an order requiring separate statements of the alleged causes of action and that they be made definite and certain, and to answer, I dissent from the view expressed as to an agreement to furnish cars at stated times being an illegal discrimination. I concede, under the authority of
Davis v. Cornwell,
264 U. S., 560; 44 S. Ct., 410; 68 L. Ed., 848, cited in the opinion of Mr. Justice Cothran, that a shipper cannot recover damages against a common carrier caused by the common carrier failing to furnish cars at a specified time and place for an interstate shipment if the shipper relies solely on an express contract with the common carrier to furnish cars at a specified time and place for an interstate shipment. In
Davis v. Cornwell, supra,
the shipper brought an action in the Montana State Court against the carrier to recover damages for breach of a contract to furnish empty cars on a day certain for loading cattle to be transported in interstate commerce. The plaintiff sued on an express contract to furnish cars on the dates named. The jury was instructed that, if the promise was made, the defendant was liable for its breach, even if the carrier was unable to furnish cars. This instruction to the jury by the trial Judge was, it seems, the cause of the case being appealed to the
United States Supreme Court after the State Supreme Court of Montana (66 Mont., 100; 213 P., 218) had affirmed the judgment of the lower Court, rendered in favor of the plaintiff. Mr. Justice Brandéis, the writer of the opinion rendered by the United States Supreme Court, states, “Whether, under the Interstate Commerce Act as amended, the express promise to furnish cars was valid is the only question requiring decision,” and that Court, in its decision, states that “the transportation service to be performed was that of common carrier under published tariff,” and “not a special service under a special contract,” and, further, that “a contract to furnish cars on a day certain imposes a greater obligation than that implied in the tariff,” and also that “the contract to supply cars for loading on a day named provides for a special advantage to the particular shipper.” Thereupon that Court reversed the Montana Court, and, in so far as interstate shipments are concerned, the decision of that Court is binding upon this Court.
Just at this juncture, for the benefit of the shippers of this State, I think it well to make this observation: That the decision rendered by the United States Supreme Court in the case of
Davis v. Cornwell, supra,
does not preclude the shipper from recovering damages against the common carrier in such cases, where the shipment is interstate commerce, if there is a lack of due diligence on the part of the common carrier to furnish the cars at the time and. place promised, and it would be competent, further, to prove the said contract for the purpose of showing that the carrier had received notice that the shipper desired cars at the time and place named for the shipment of his property, or as evidence that the common carrier had not made reasonable effort to supply the cars; it being the obligation of the common carrier, implied in the tariff, to use due diligence to provide, upon reasonable notice, cars for loading at the time desired, as set forth under the foregoing mentioned
decision. As I understand the opinion of the Court rendered in that case, the case was reversed on the ground that the shipper based his action absolutely and solely upon an express contract of the common carrier to furnish cars at a specified time to be loaded with property for interstate transportation. Further, as I take it, this view is not inconsistent with the view expressed in the opinion of Mr. Justice Cothran as to interstate shipments.
In referring to the opinion in
Davis v. Cornwell, supra,
I have not discussed the Federal Statute, which was under consideration by the writer of the opinion in that case for the reason that such a discussion could serve no useful purpose, since, as hereinbefore stated, that decision is binding on this Court as to interstate shipments. While the decision of that Court is entitled to the highest respect and greatest deference, it is, however, not binding on this Court in intrastate matters, and I can see no good reason for placing the construction on the South Carolina Statute under consideration in this case that the Federal Court has placed on a Federal Statute involved in interstate shipments, even though the wording of a portion of the two be somewhat similar. Under the demurrer, the defendant contends that the plaintiff’ cause of action, which is based on an express contract to furnish cars between specified dates for transportation of logs, is void under Section 4842 et seq., Vol. 3, of the Code of 1922, and that an action will not lie for the breach of such a contract, and further contends that it imposes on the railroad an obligation greater than that imposed by the South Carolina Statute and rules and regulations of the South Carolina Railroad Commission, that it is a burden on commerce, gives a particular shipper a special advantage or preference, and discriminates against the public generally. Mr. Justice Cothran, in his opinion, holds that “the alleged agreement amounts to an illegal discrimination and cannot be enforced,” and further holds that “it is in violation of the
Statutes of South Carolina (Section 4842 et seq., Vol. 3, of the Code of Daws of South Carolina). * * *” After a careful consideration of the question, I am unable to accept this view, and therefore dissent.
Just here I desire to call attention to the fact that there is nothing in the pleadings, so far as I have been able to ascertain, that shows that the cars were to be used for interstate shipments, and therefore we must assume that the cars were intended to be used for intrastate shipments and not interstate shipments, and the Federal Statute and rules of the Interstate Commerce Commission are not involved in this case; that is, under the pleadings as they now stand.
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The opinion of the Court was delivered by
Mr. Justice; Carter.
This action was commenced in May, 1925, in the Court of Common Pleas for Orangeburg County, “and is for damages, which, as the complaint alleges, resulting from the breach by the defendant of' an express contract between plaintiff and defendant, and damages from other causes of action as alleged in said complaint, and in which contract, the complaint alleges, defendant was to furnish plaintiff cars
between specified dates for the transportation of logs.” The defendant demurred to the complaint upon the grounds (1) that it did hot state facts sufficient to constitute a cause of •action, and (2) that the Court had no jurisdiction of the subject of the action. The demurrer was heard by his Honor, Judge Wilson, who issued an order overruling the same. The case comes now before this Court on appeal from the order of his Honor, Judge Wilson. The complaint, demurrer, order, and exceptions should be reported.
While I am in accord with the views expressed in the opinion of Mr. Justice Cothran in this case as to the appeal being dismissed and the case remanded to the Circuit Court, with leave to the defendant to move for an order requiring separate statements of the alleged causes of action and that they be made definite and certain, and to answer, I dissent from the view expressed as to an agreement to furnish cars at stated times being an illegal discrimination. I concede, under the authority of
Davis v. Cornwell,
264 U. S., 560; 44 S. Ct., 410; 68 L. Ed., 848, cited in the opinion of Mr. Justice Cothran, that a shipper cannot recover damages against a common carrier caused by the common carrier failing to furnish cars at a specified time and place for an interstate shipment if the shipper relies solely on an express contract with the common carrier to furnish cars at a specified time and place for an interstate shipment. In
Davis v. Cornwell, supra,
the shipper brought an action in the Montana State Court against the carrier to recover damages for breach of a contract to furnish empty cars on a day certain for loading cattle to be transported in interstate commerce. The plaintiff sued on an express contract to furnish cars on the dates named. The jury was instructed that, if the promise was made, the defendant was liable for its breach, even if the carrier was unable to furnish cars. This instruction to the jury by the trial Judge was, it seems, the cause of the case being appealed to the
United States Supreme Court after the State Supreme Court of Montana (66 Mont., 100; 213 P., 218) had affirmed the judgment of the lower Court, rendered in favor of the plaintiff. Mr. Justice Brandéis, the writer of the opinion rendered by the United States Supreme Court, states, “Whether, under the Interstate Commerce Act as amended, the express promise to furnish cars was valid is the only question requiring decision,” and that Court, in its decision, states that “the transportation service to be performed was that of common carrier under published tariff,” and “not a special service under a special contract,” and, further, that “a contract to furnish cars on a day certain imposes a greater obligation than that implied in the tariff,” and also that “the contract to supply cars for loading on a day named provides for a special advantage to the particular shipper.” Thereupon that Court reversed the Montana Court, and, in so far as interstate shipments are concerned, the decision of that Court is binding upon this Court.
Just at this juncture, for the benefit of the shippers of this State, I think it well to make this observation: That the decision rendered by the United States Supreme Court in the case of
Davis v. Cornwell, supra,
does not preclude the shipper from recovering damages against the common carrier in such cases, where the shipment is interstate commerce, if there is a lack of due diligence on the part of the common carrier to furnish the cars at the time and. place promised, and it would be competent, further, to prove the said contract for the purpose of showing that the carrier had received notice that the shipper desired cars at the time and place named for the shipment of his property, or as evidence that the common carrier had not made reasonable effort to supply the cars; it being the obligation of the common carrier, implied in the tariff, to use due diligence to provide, upon reasonable notice, cars for loading at the time desired, as set forth under the foregoing mentioned
decision. As I understand the opinion of the Court rendered in that case, the case was reversed on the ground that the shipper based his action absolutely and solely upon an express contract of the common carrier to furnish cars at a specified time to be loaded with property for interstate transportation. Further, as I take it, this view is not inconsistent with the view expressed in the opinion of Mr. Justice Cothran as to interstate shipments.
In referring to the opinion in
Davis v. Cornwell, supra,
I have not discussed the Federal Statute, which was under consideration by the writer of the opinion in that case for the reason that such a discussion could serve no useful purpose, since, as hereinbefore stated, that decision is binding on this Court as to interstate shipments. While the decision of that Court is entitled to the highest respect and greatest deference, it is, however, not binding on this Court in intrastate matters, and I can see no good reason for placing the construction on the South Carolina Statute under consideration in this case that the Federal Court has placed on a Federal Statute involved in interstate shipments, even though the wording of a portion of the two be somewhat similar. Under the demurrer, the defendant contends that the plaintiff’ cause of action, which is based on an express contract to furnish cars between specified dates for transportation of logs, is void under Section 4842 et seq., Vol. 3, of the Code of 1922, and that an action will not lie for the breach of such a contract, and further contends that it imposes on the railroad an obligation greater than that imposed by the South Carolina Statute and rules and regulations of the South Carolina Railroad Commission, that it is a burden on commerce, gives a particular shipper a special advantage or preference, and discriminates against the public generally. Mr. Justice Cothran, in his opinion, holds that “the alleged agreement amounts to an illegal discrimination and cannot be enforced,” and further holds that “it is in violation of the
Statutes of South Carolina (Section 4842 et seq., Vol. 3, of the Code of Daws of South Carolina). * * *” After a careful consideration of the question, I am unable to accept this view, and therefore dissent.
Just here I desire to call attention to the fact that there is nothing in the pleadings, so far as I have been able to ascertain, that shows that the cars were to be used for interstate shipments, and therefore we must assume that the cars were intended to be used for intrastate shipments and not interstate shipments, and the Federal Statute and rules of the Interstate Commerce Commission are not involved in this case; that is, under the pleadings as they now stand. According to my view, the alleged express contract between the plaintiff and the defendant whereby the defendant agreed to furnish the plaintiff cars on a specified day for the transportation of logs is not void, does not give the particular shipper a special advantage or preference, does not discriminate against the public, is not an illegal discrimination, and is not in violation of the Statutes of South Carolina. I find no provision in the Statute cited which, tO‘ my mind, could be construed as prohibiting the making of such a contract. Section 4842, Vol. 3, of the Code, which has been referred to, contains this provision:
“It shall be unlawful for any person so engaged as aforesaid, or person engaged solely in the shipment or receiving of property, directly or indirectly, to allow or receive any rebate, drawback or other advantage, in any form, upon shipments made or services rendered or received by them as aforesaid.”
I do not think such a contract as the one under consideration could be construed “to allow or receive any rebate, drawback or other advantage”; neither does the contract give a preference to the particular shipper, nor does it discriminate against others. The recognition of the right of a shipper to make a contract with a common carrier for cars on a
specified day for the transportation of his property^ is but the recognition of an orderly way of transaction of business. It enables the owner of property to know when to engage laborers for the purpose of assembling his property for shipment, and further enables him not only to make contracts with laborers in a businesslike manner, but it enables him to make contracts with parties at a distance for the sale and delivery of his property to be transported and delivered with some degree of certainty. Take this right away and you, to a great extent, deprive the shipper of a market for this property and thereby indirectly destroy his property, discourage the production of property, and paralyze business. Take for example the grower of farm products — for instance, some perishable crop — it is absolutely necessary for him to know days ahead when he can get cars for loading and transporting the crops so made; otherwise, he cannot contract for the sale of the crop; neither can he contract for gathering and loading the same, and he is therefore absolutely “at sea,” and, as a result, the crop may become a total loss. No man or class of men can conduct a business under such conditions. Why should a common carrier not be permitted to obligate to furnish cars on a certain day? Such a right certainly does no injury to the common carrier, but, on the other hand, it enables the carrier to better plan to serve the public, build up business, and thereby increase its revenue. In what way does such a right discriminate against the public All shippers have the same right to contract for cars; they are all on an equal footing, and such a right and system simply enables the common carrier to handle its business in an orderly way. Again, why place a construction on a South Carolina Statute that would deprive the shipper and common carrier of the right to make a contract to furnish cars on a certain day for the transportation of property when such an intent and purpose is not clearly shown by the wording of the Statute? Did the Legislature
of South Carolina intend that this Statute should be thus construed. There is certainly nothing in the context to give this impression, and, under the view I take, such a construction should not be given to the Statute when there is nothing in the context to show that such was the intention and purpose of the Legislature.
I further hold that, in the absence of a Statute of this State prohibiting the making of such a contract between shipper and common carrier, the right to make such a contract cannot be denied. This position is supported by the decisions of this Court and by other leading authorities.
The case of
Mauldin v. Seaboard Air Line Railway,
73 S. C., 9; 52 S. E., 677, clearly upholds the position that a common carrier may contract with a shipper to furnish cars on a specified date for the transportation of property of the shipper. The opinion of the Court in that case was written by the late Mr. Justice Woods, and, in dealing with this question, Mr. Justice Woods used the following language:
“If a common carrier assumes a contractual obligation outside of and beyond the duty imposed- by public policy, it must perform the contract or pay the damages, unless it can show circumstances which relieve from the performance of contracts generally, and unexpected emergencies in its business would not be sufficient to excuse it.”
Mr. Justice Woods cites in support of this position 4 Elliott on Railroads, § 1473. The writer of that opinion further quotes with approval the following language from 5 A. & E. Enc. of Law, 168:
“Where there is a sudden and unusual pressure of business, arising from exceptional causes, and which the company could not reasonably be expected to have anticipated, it is not liable for the delay thereby necessitated,
unless it had specially contracted to furnish such transportation.
* * *” (Italics ours).
It will thus be seen from this opinion of Mr. Justice Woods, as the organ of the Court, that the Court clearly recognizes the general rule of the right of shipper and common carrier to make such a contract as the one we have for consideration. The case of
Mathis v. Southern
Railway, 65 S. C., 271; 43 S. E., 684; 61 L. R. A., 824, likewise sustains the position of the right of a shipper to make a contract with a common carrier to furnish cars to the shipper on a specified date. The opinion in this case was written by the late Chief Justice Gary, then Associate Justice, and, in discussing this question, he used the following language:
“The complaint alleges .that the plaintiff not only notified the defendant of the intended shipment, but that it agreed to furnish the refrigerator cars. If this was the fact, the defendant could not relieve itself from liability under the facts mentioned in the exceptions.”
I call attention to the fact that the South Carolina Statute which is now before the Court for consideration was enacted in its present form before the rendering of the above-mentioned opinions. In the case of
Clark v. Railway,
189 N. Y., 93; 81 N. E., 766; 13 L. R. A. (N. S.), 164; 121 Am. St. Rep., 848; 12 Am. Cas., 883, in discussing this question, the New York Court used this language:
“The binding character of such an agreemnt is recognized by the text-writers, and by the Courts wherever the question appears to1 have arisen.”
The Supreme Court of Georgia, in the case of
Railway v. Thompson,
133 Ga., 127; 65 S. E., 285, holds to the same effect as the above-mentioned New York case. In 10 C. J., p. 212, §§ 290 to 291, we find the principle stated thus:
“The carrier may make a binding contract to furnish cars at specified times and places, and will be liable for all damages to the shipper caused by failure or delay in carrying out such contract, and the contract may be by parol as well as in writing, and for interstate as well as intrastate shipments.
Contracts of this character are not invalid as contrary to public policy and discriminatory, and are not prohibited by the Carmack Amendment. The contract must be express, for otherwise the proposing shipper has no action, save on a breach of the carrier’s general common-law duty to furnish cars within a reasonable time. The rules applicable to contracts generally, making consideration and mutuality essential to their validity, apply to contracts of the character under consideration. Whether or not a contract to furnish cars at a particular time and place exists, and whether or not there has been a sufficient compliance therewith must be determined by the facts of each particular case and by the application of the ordinary rules governing the interpretation of contracts.-”
4 R. C. L., p. 679, § 154, lays down the same rule as
Corpus Juris.
I, therefore, hold that a contract between a shipper and a common carrier for the common carrier to furnish cars to the shipper on a specified day for the transportation of property of the shipper, between points within the state of South Carolina, is valid and enforceable in the Courts of this state.
This opinion was written as a dissent in part to the opinion of Mr. Justice Cothran; but, since it has been concurred in by Mr. Justice Stabler and Acting Associate Justice Whiting, it becomes the judgment of this Court, which is that the appeal be and the same is hereby dismissed and the case remanded to the Circuit Court for such further disposition as is not inconsistent with the views expressed in this opinion, with leave to the defendant to move for an order requiring separate statements of the alleged causes of action and that they be made definite and certain, and to demur or answer; also with leave to the plaintiff to make such additional allegations as he may be advised, consistent with the rules of pleading.
Mr. Justice Stabler and Mr.-Acting Associate Justice Wi-iiting, concur.
Mr. Acting Associate Justice Whiting:
I agree with the views stated in the opinion of Mr. Justice Carter. The reasons assigned for his conclusions seem to be clear and convincing. The question involved, however, is essentially one of public policy under the South Carolina Statutes. Being mindful of the fact that in participating in this decision I am filling a temporary appointment- only, I do not feel that an opinion by a divided Court, which is made possible only through my concurrence as an acting Associate Justice, should be extended beyond the absolute requirements of the present cause: Any other position would, it seems to me, permit members of the bar, who aré almost necessarily affected, to some degree at least, by the associations and connections of active practice, to exercise at times controlling influence in establishing precedents of the broadest scope and character, quite conceivably, in causes where the circumstances of the particular appeal might involve the determination of the most important questions of public policy.
As this case goes back in any event for a more definite statement of the alleged causes of action, and especially as the amendment of the complaint may result in altogether eliminating the point of controversy in the present appeal, I think that the opinion now declared should not have effect as the final determination of the Court upon the subject. .My concurrence in the opinion of Mr. Justice Carter is therefore expressed from the viewpoint, and with the desire, that it should not be regarded as precluding, or in anywise prejudicing, the right of the defendant, Southern Railway Company, to obtain, before the Court as regularly constituted, a review and reconsideration of the conclusions announced, in any appeal that may be taken from final judgment.