
    TEXAS CENT. R. CO. et al. v. HANNAYFRERICHS & CO.
    (Supreme Court of Texas.
    Jan. 24, 1912.)
    1. Carriers (§ 105) — Transportation or Goods — Delay—Damages.
    In an action against a carrier for delay in the transportation of goods, plaintiff is entitled to interest at the legal rate on the value of the shipment for the time it was delayed.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 454, 455; Dec. Dig. § 105.]
    
      2. Caeeiers (§ 76) — ActioN —Assignment of Cause of Action.
    An assignment to plaintiff of a claim by a consignor for damages for delay in delivery vested in Mm the right of the shipper.
    [Ed. Note. — For other cases, see Carriers, Dec. Dig. § 76.]
    3. Carriers (§ 105) — Delay of Shipment-Penalty.
    Rev. St. 1895, art. 4496, provides that, on refusal of a railroad to transport any property or deliver it at the regular appointed time, it shall pay all damages sustained, and in ease of the transportation of property shall in addition pay special damages of 5 per cent, per month on the value of the property at the time of shipment, for the negligent detention thereof beyond the time reasonably necessary for transportation. Held, that a contention that the statute implied that other damages accrued and that the 5 per cent, was to be given only “in addition” to other damages was without merit.
    [Ed. Note. — Eor other cases, see Carriers, Cent. Dig. §§ 451-458; Dec. Dig. § 105.]
    4. Carriers (§ 2) — Transportation of Goods — Delay—Penalty — Constitutionality.
    Rev. St. 1895, art. 4496, imposing on a railroad company a penalty of 5 per cent, per month on the value of a shipment during its negligent detention in transportation, does not violate Const, art. 1, § 13, declaring that excessive fines should not be imposed, nor cruel and unusual punishment inflicted.
    [Ed. Note. — For other cases, see Carriers, Dec. Dig. § 2.]
    5. Constitutional Daw (§ 48) — Presumptions as to Validity.
    A law regularly enacted by the Legislature is to be sustained unless its invalidity is manifest.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § .46; Dec. Dig. § 48.]
    6. Criminal Law (§ 1213) — Cruel and Unusual Punishment — Federal Constitution-Application to State Legislation.
    The provision of the- federal Constitution prohibiting cruel and unusual punishment does not apply to the legislation by the states.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3304; Dec. Dig. § 1213.]
    7. Carriers (§ 2) — Regulation—Repeal of Statute.
    Rev. St. 1895, art. 4496, provides that, on the refusal of any railroad to transport any property or deliver it at the regular appointed time, it shall pay to the aggrieved party all damages sustained, and in case of transportation of property shall pay special damages of 5 per cent, per month upon the value of the property at the time of shipment for the negligent detention thereof 'beyond the time reasonably necessary for its transportation. Railroad Commission Law (Rev. St. 1895, art. 4574) provides that if any railroad shall charge or collect a greater or less compensation for any service rendered or to be rendered than it charges or collects from any other person for doing a like service it shall be deemed guilty of unjust discrimination, and article 4575 gives a right to recover a penalty and damages for a violation of the statute, the penalty being in a named sum, and article 4581 saves the rights of parties to recover under other provisions of the statute. Held, that article 4496 is not repealed by implication by the other statute, there being no conflict.
    [Ed. Note. — For other cases, see Carriers, Dec. Dig. § 2.]
    8. Carriers (§ 20) — Transportation—Delay in Transportation — Penalties—Defenses.
    Where a carrier did not require prepayment of freight charges as authorized by Rev. St. 1895, art. 4494, if waived such prepayment, so that failure to prepay was not a defense to an action under article 4496, imposing a penalty for delay in transportation.
    [Ed. Note. — For other cases, see Carriers, Dec. Dig. § 20.]
    9. Carriers (§ 20) — Delay vin Transportation — Penalties.
    In an action against a carrier under Rev. St. 1895, art. 4496, imposing a penalty for delay in transportation, the burden was on defendant to show that the delay was not negligent.
    [Ed. Note. — For other eases, see Carriers,. Dec. Dig. § 20.]
    10. Carriers (§ 20) — Delay in Transporting Goods — Damages.
    In an action under Rev. St. 1895, art. 4496, to recover a penalty for delay in transporting goods, evidence of any circumstances which contributed to produce the delay in spite of ordinary diligence on the part of the carrier was admissible to disprove negligence.
    [Ed. Note. — For other cases, see Carriers, Dec. Dig. § 20.]
    11. Carriers (§ 20) —Transportation of Goods — Delay—Penalty.
    That shippers were notified by a carrier of conditions which prevented delivery of shipments in the usual .time was no defense to an action for the penalty for delay in transportation under Rev. St. 1895, art. 4496, as a knowledge of the existence of the facts would not be sufficient to charge the shipper with notice of their effect on the carrier.
    [Ed. Note. — For other cases, see Carriers, Dec. Dig. § 20.]
    12. Carriers (§ 20) — Delay in Transporting Freight — Penalty.
    In an action under Rev. St. 1895, art. 4496, to recover a penalty for delay in the transportation of freight, an answer alleging that there was great prosperity in the country at the time, and that trade conditions demanded a larger number of cars than had ever been required, was demurrable, in the absence of any allegation of how the ability of defendant to move freight was thereby affected.
    [Ed. Note. — For other, cases, see Carriers, Dec. Dig. § 20.]
    13. Carriers (§ 20) — Transportation of Freight — Delay.
    In an action under Rev. St. 1895, art. 4496, against a carrier for a penalty for delay in transporting freight, an answer alleging that owing to the unusual conditions it was-difficult to secure help in railroad offices, was subject to exception, in the absence of any allegation of how that fact contributed te the delay.
    [Ed. Note. — For other cases, see Carriers, Dec. Dig. § 20.]
    Error to Court of Civil Appeals of Fifth, Supreme Judicial District.
    Action by Hannay-Frerichs & Co. against the Texas Central Railroad Company, in. which the International & Great Northern Railroad Company and the Houston & Texas-Central Railroad Company and the Gulf, Colorado & Santa Fé Railroad Company were impleaded. Judgment for plaintiff was affirmed by the Court of Civil Appeals (130 S, W. 250), and defendants bring error.
    Affirmed in part, and reversed in part.
    Collins & Cummings, J. A. Kibler, Terry, Cavin & Mills, C. K. Lee, King & Morris, Baker & Baker, Baker, Botts, Parker & Gar-wood, .and W- EL Spell, for plaintiffs in error. Morrow & Smitbdeal, for defendant in error.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
    
      
      For other cases see same topic and section NUMBER In Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes.
    
   BROWN, C. J.

The defendants in error, hereafter designated as “the company,” sued the Texas Central Railroad Company for damages to cotton delivered to it for transportation, and that railroad company inter-pleaded the International & Great Northern Railroad Company, the Houston & Texas Central Railroad Company, and the Gulf, Colorado & Santa Eé Railroad Company. The plaintiff filed an amended petition seeking to recover against each and all of the railroads damages arising out of the shipment of a large number of bales of cotton. It was alleged that the cotton was delivered to the Texas Central Railroad Company at Hico, Leon and Gormon stations on its railroad to the number of 8,305 bales, each bale being of the value of $65. The cotton was delivered to and received by the said company for transportation to Houston and Galveston. All of said cotton was delivered to said railroad by Knoop-Frerichs & Co. who assigned their claim to defendants in error. The Texas Central Railroad Company delivered the cotton to its codefendants for transportation to destination. There was much delay in' the transportation of the cotton for which damages were claimed, and it was alleged that the delivery of the cotton at destination was negligently delayed, for which a penalty was claimed under article 4496, Revised Statutes. The allegations of the plaintiff’s petition set up the transactions in detail, but much of it is unnecessary to the decision of the question presented here — that found necessary will be quoted.

The Texas Central Railroad Company pleaded in proper manner, first, that at the time the several deliveries of cotton were made to it there was a strike of the em-ployés of the different railroads which were engaged in cotton at Galveston, which strike prevented the unloading of cars for a great time, and thereby prevented the return of the cars for use in carrying other cotton to that place, and by such strike defendant was prevented from transporting the cotton with the usual dispatch. It was alleged that when the cotton was delivered for transportation the shippers were informed of the blockade of transportation by reason of the strike and other causes and delivered the cotton with the understanding and agreement that the transportation of it might be delayed by such conditions. The answer was full and sufficient to present the issues. The plaintiff filed a general demurrer and special exceptions to the answer which were sustained. . The Texas Central Railroad Company pleaded that in the years 1906 and 1907 the yield of cotton in the territory through which its road was operated wás unprecedented in quantity, that such yield could not be anticipated and that it was impossible for it to furnish sufficient cars to carry the said cotton, from which cause the delay occurred. That its line of road was inland and it was dependent upon its codefendants and other lines of road which reached Houston and Galveston to return its cars when delivered to them and to furnish other cars which the said railroads failed to do, whereby the delay was without fault on its part. A general demurrer and special exceptions were sustained to the answer. If it shall appear that other facts are necessary to understand any question of law involved, we will state such additional facts. Each of the railroad companies filed general demurrers to the amended petition and answers presenting the same issues. Upon trial before a jury judgment was -rendered .against the defendants.

The first assignment of error reads: “The Honorable Court of Civil Appeals erred in overruling the first assignment of this plaintiff in error in said court, complaining of the action of the trial court in overruling the general demurrer of this plaintiff in error to the plaintiff’s petition.”

Under this assignment are nineteen propositions, which really present but three issues of law: (1) That the 6 per cent interest on the value of the property delayed cannot be recovered. This court has held that in such case the legal rate of interest may be recovered. Dorranee v. Railway Co., 125 S. W. 561. In that case the party had borrowed money because of the delay. In this case the consignor presumably was by the delay prevented from converting the cotton into money and lost the use of the amount invested in it. The same principle underlies both cases. If money had been shipped and delayed the measure of damage would have been 6 per cent., lawful interest, for the time of delay. That would compensate for the loss. Here the money was in the cotton, and the injury the same.

It is claimed the petition does not show that the cotton belonged to plaintiffs at the time of the delay. Knoop-Ererichs & Co. were the consignors and also the consignees, there being no evidence of change, and the presumption would be that the ownership continued. The petition alleged an assignment to plaintiffs of the claim by the original consignors, which vested in plaintiffs the rights of the shippers.

It is insisted that the language of article 4496, Rev. St. 1895, implies that other damages had accrued, and that the 5 peícent. was to be given only “in addition” to other damages. We do not agree to that construction, but, if correct, other damages did accrue by reason of the delay; that is, the deprivation of the use of the money invested. The language was used to show that the 5 per cent, was not Intended to exclude other damages for delay.

Again, the plaintiffs in error urge upon this court the proposition that the “special damages” provided for by article 4490 is a penalty, and is so excessive as to violate section 13 of article 1 of our state Constitution, which reads: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted. All courts shall be open, and every person for an injury done him in his lands, goods, person or reputation shall have remedy by due course of law.”

The validity of an act of the Legislature is at all times to be dealt with by this court with caution that the legislative power be not improperly interfered with.

It is a correct rule of construction that a law regularly enacted by the legislative department shall be sustained, unless its in* validity is manifest. In State v. Laredo Ice Co., 96 Tex. 461, 73 S. W. 951, a similar question was before this court and it was said: “It is also contended by appellee that the act of 1899 [Acts 26th Leg. c. 146], is unconstitutional and void, because it imposes upon persons who may violate its provisions excessive and unreasonable penalties in violation of section 13, art. 1, of the Constitution, which provides that, ‘excessive bail shall not be required nor excessive fines imposed nor cruel or unusual punishment inflicted.’ Prescribing fines and other punishments which may be imposed upon violators of the law is a matter peculiarly within the power and discretion of the Legislature, and courts have no right to control or restrain that discretion except in extraordinary cases where it becomes so manifestly violative of the constitutional inhibition as to shock the sense of mankind. 13 Am. & Eng. Enc. of Law, 60; Express Co. v. Walker, 92 Va. 66, 22 S. E. 809, 41 L. R. A. 436. In the case cited the court said: ‘The imposition and regulations of fines belong >to the Legislature, and to its discretion and judg ment the widest latitude must be conceded. Fines are to be fixed with reference to the object they are designed to accomplish. * * * What is to be the legislative guide, in performance of its duty, but its sound judgment and the wisdom of experience? And how can courts with reason and propriety question the action of the Legislature or control or restrain its discretion except where the minimum penalty is so plainly dis-proportioned to the offense or act for the violation of which it is affixed as to shock the sense of mankind?’ There is a wide range for the discretion of the jury between the minimum and the maximum penalties fixed by this act, and we are not able to say that the minimum penalty inflicted upon an individual would be so excessive as to ‘shock the sense of mankind.’ ”

The language copied is quite as appropriate in this case as in that. The regulation and control of public utilities is peculiarly within the power of the Legislature, and this-court will not interfere with the exercise of that authority, except in case of manifest violation of the Constitution.

If one bale of cotton had been delayed one month the penalty of 5 per cent, on its value, $65, would be $3.25, which would not be excessive. But when more than 8,000 bales of the value of $605,000 have been so-delayed, the penalty would be $30,250, a large sum. The magnitude of the damages or penalty is, not in the law, but arises from-the number of violations. We do not believe that a law can be rendered invalid by frequent violations of its mandates whereby accumulated fines would amount to a large sum. The article of the statute is not in-conflict with the Constitution of this state.

The provision of the Constitution of the United States does not apply to such-legislation by the states. Pervear v. Commonwealth, 5 Wall. 475, 18 L. Ed. 608. That court said: “The third proposition of the plea is that fines and penalties imposed and inflicted by the state law for offenses charged in the indictment are excessive, cruel, and unusual. Of this proposition it is enough to say that the article of the Constitution relied upon in support of it does not apply to state but to national legislation.”

Under the first assignment of error plaintiffs in error present this proposition: “Article 4496 of the Revised Statutes of the-state of Texas was repealed by the provisions of the Railroad Commission Act, passed in 1891, particularly by articles 4574, 4575, and 4581 thereof, treating of the same subject-matter, and both expressly and in effect repealing all laws or parts of laws in conflict therewith.”

The articles of the statutes named in the-proposition are parts of the Railroad Commission law. The first paragraph of article-4574 is in this language: “If any railroad-subject hereto, directly or indirectly, or by any special rate, rebate, drawback or other device, shall charge, demand, collect or receive from any person, firm or corporation a greater or less compensation for any service rendered or to be rendered by it than-it charges, demands, collects or receives from any other person, firm or corporation-for doing a like and contemporaneous service, such railroad shall be deemed guilty of unjust discrimination, which is hereby prohibited.”

This clearly defines the purpose of the article to be to define unjust discrimination-subdivisions 1, 2, and 3 state the particular acts which constitute unjust discrimination, and subdivision 4 declares the punishment for a violation of the law, and subdivision 5 enumerates the exceptions. There is no-conflict between this article and article 4496, therefore repeal by implication cannot be declared by the courts. Article 4575 gives-a right to recover a penalty and damages for violation of that law; hut the penalty is in a named sum of not less than $125' nor more than $500. There is nothing in this article which" is in conflict with article 4496 and there is no repeal. Article 4581 saves the rights of parties to recover under other provisions of the law, showing there was no intention to repeal the article on which this action is based. Plaintiffs in error contend that the penalty cannot be recovered because there was no proof that the freight charges were paid. Article 4494, Revised Statutes, contains this language:

“Every such corporation shall start and run their cars for the transportation of passengers and property at regular times, to be fixed by public notice, and shall furnish sufficient accommodations for the transportation of all such passengers and property as shall within a reasonable time previous thereto offer or be offered for transportation at the place of starting, and the junction of other railroads, and at sidings and stopping places established for receiving and discharging way passengers and freights, and shall take, transport and discharge such passengers and property at, from and to such places on the due payment of the tolls, freight or fare legally authorized therefor.”

The railroad company might have refused to receive the cotton or to transport it except upon prepayment of freight, but when it received the freight there was a waiver of prepayment.

We do not think it necessary to discuss the assignment which asserts that the court erred in overruling their general demurrer to plaintiff’s petition. We are of opinion that the allegations, if true, showed a cause of action.

Assignments from 12 to 25, inclusive, assert that the trial court erred in sustaining plaintiff’s special demurrers to defendant’s special answers. We copy from the answer as follows: “For further and separate answer herein, this defendant shows that if there were any delays in the movement of the plaintiffs’ cotton over the line of this defendant, or if there were any delays of the said cotton at all while in transit which were in any way directly or indirectly traceable to any acts of this defendant, which is not admitted, but expressly denied, the defendant says that such delays were not the result of any fault or negligence of this defendant, but were the result of unusual, unprecedented and extraordinary conditions arising and coming up either shortly prior to the time the plaintiffs’ cotton was tendered for shipment and was in transit, or during such time and continuing during the entire time said shipments were in transit, or were the result of the effects of such extraordinary and unusual and unprecedented conditions so continuing during the entire time that the plaintiffs’ said shipments were in transit. Defendant shows that said conditions were entirely unexpected by this defendant and the other railroads in the state-of Texas (said conditions affecting practically every railroad in the state, and the effect thereof in most instances being common to all), and in the exercise of reasonable-diligence could not be anticipated, and even if they could have been anticipated, or their probable occurrence known, they could not have been anticipated or known sufficiently far in advance of their occurrences for this-defendant and the railroads of the state-generally to have provided against the effects-of such occurrences and such extraordinary conditions in the exercise of the diligence required of it by law.”

The pleader then proceeds to state in separate paragraphs the particular conditions- and circumstances which prevented the prompt transportation and delivery of the-cotton. The defendants in error filed special exceptions to the answers which were sustained, which action is assigned as error. We will summarize the answers which are too lengthy to be copied. The action was to recover actual damages and the special damages (penalty) for negligent delay in the-shipment of cotton.

Article 4496, Revised Statutes, placed the burden on the defendant to show that the delay was not negligent. Whatever circumstances contributed to ' produce the delay in spite of ordinary diligence on the-part of the carrier, and to which circumstances the carrier did not contribute, were admissible to disprove negligence.

It is said in the application that the shippers were notified by the. railroad company of the conditions which prevented shipments in the usual time. If the allegation-be true as stated in the answer, the fact would not bar the plaintiff’s recovery of actual or special damages. A knowledge of the existence of the facts alleged would not be sufficient to charge the shipper with notice of their effect upon the railroad company receiving the freight. M., K. & T. Ry. Co. v. Stark Grain Co., 131 S. W. 410. Notice or knowledge of the existence of the alleged conditions would not relieve the carrier of its liability for a breach of its contract for-carriage unless its liability to comply with the law by reason of such conditions was made known to the shipper before delivery of the cotton.

The answers in a number of paragraphs proceed to set out the facts and circumstances relied upon as follows:

It was alleged that there was great prosperity in the United States in the fall of the year 1906, and its trade conditions demanded a much larger number of cars and other equipments than had been required at any previous time. This does not show in what way the ability of the defendants to carry the freight as usual was affected by such conditions, and was immaterial to the issues in this case. The demurrer was-properly sustained to that portion of the •answers.

Under assignment 19 in the application, complaint is made of the ruling of the Court of Civil Appeals in sustaining the action of the district court which sustained ■exceptions to a paragraph of the answers which alleged that owing to the unusual conditions it was difficult to secure help in the railroad offices. The exception was properly sustained. It does not appear in what manner the scarcity of help in the offices ■contributed to the delay in transportation.

We do not deem it necessary to discuss in detail the different conditions and facts alleged in the special answers. We have in■dicated those parts that in our opinion were properly eliminated because too remote to be accorded any weight as evidence, and as •to the remaining paragraphs we conclude that the facts alleged in each tended to show conditions which ¡may unavoidably have contributed to the delays in transportation of the cotton involved in this suit. Article 4496 implies a presumption Ehat a delay in transportation was negligent and ■casts upon the carrier the burden of refuting the presumption, and we are of opinion that the facts, circumstances and conditions alleged, if true, tended to overthrow the law of presumption. The exceptions should not have been sustained to those paragraphs ■of the answer.

It is ordered that the judgment rendered in this case for actual damages be and the same is affirmed, and that in so far as the judgments award special damages that judgment is reversed and as to that issue the cause is remanded. It is ordered that the plaiitiffs in error recover the costs of this ■court and of the Court of Civil Appeals.  