#### W. J. OLIVE and G. L. COLLIER v. ATLANTIC COAST LINE RAILROAD COMPANY.

(Filed 31 March, 1910.)

1. Carriers of Freight — Penalty Statutes — Refusal to Accept Freight — interpretation of Statutes.

Revisal, sec. 2631, imposing a penalty upon the carrier refusing to accept freight for shipment, provides that the tender be made at a regular station and that the articles tendered be of the nature and kind received by the carrier for transportation, and it is necessary in an action for the penalty to show that the character of the shipment and place of tender are such as fall within its provisions.

2. Pleadings — Demurrer—Measure of Damages.

A demurrer to the complaint cannot be'sustained when under the allegations the plaintiff is entitled to some damages, but the measure- of damages cannot be considered upon demurrer.

3. Pleadings — Demurrer—Penalty Statutes — Some Damages — Interstate Shipments — Refusal to Accept.

The complaint in an action for damages alleged by failure of carrier to accept a tender of an interstate shipment, and for the penalty under Revisal, sec. 2631, sufficiently alleging a ground for the recovery of nominal damages at least, the question of whether the statutory penalty may be imposed upon an interstate shipment does not arise upon defendant’s appeal from an order of the trial judge overruling a demurrer to the complaint defendant had interposed.

4. Pleadings — Demurrer Overruled — Costs—Procedure—Answer Over.

It is error to tax defendant with costs upon overruling its demurrer to the complaint, when there is no suggestion of its -being frivolous. In such case the judgment should be that defendant answer over.

Appeal from Lyon, J., at October Term, 1909, of Cumbee-land.

Civil action to recover penalty of tbe defendant carrier for refusal to receive, for shipment, lumber tendered by tbe plaintiffs to defendant’s agent at Made, N. 0., for shipment to Henderson-Jarrett Company at Norfolk, Ya., and refusing to issue a bill of lading for tbe same, after due demand by tbe plaintiffs, and for damages suffered in consequence of such refusal.

Tbe cause coming on to be beard on demurrer, tbe demurrer was overruled, and defendant appealed.

*280 Q. K. Nvmoclcs for plaintiff.

Rose & Rose for defendant.

Brown, J.

1. Tbe - allegations of tbe complaint could be made a little more definite as to- tbe exact place where tbe tender of tbe lumber was made, but in tbeir present form we tbink they state a cause of action wbicb, if established, would entitle plaintiffs to recover something.

It is manifest from an examination of section 2631 of tbe Revisal, under wbicb this action is broug’ht, that tbe exact place of tender is very material in determining tbe liability of tbe carrier. Under tbe language of tbe statute tbe carrier is required to receive at "a regular station" only “all articles of tbe nature and kind received by such company for transportation.” Tbe carrier is not required to receive them when tendered elsewhere, except in tbe case of loaded cars (loaded by tbe shipper), which may be tendered “at a sidetrack or any warehouse connected-with tbe railroad by a siding.”

Of course, tbe plaintiffs cannot recover, on this complaint, for a failure to- furnish cars under section 2634 of tbe Revisal, as they do not set out any allegations of fact coming within tbe terms of fhat section, or base tbeir claim upon it.

Tbe gravamen of tbeir complaint and tbe cause of action, as stated, is that they tendered to defendant at "Wade, N. O., a certain quantity of loose lumber for shipment to Henderson-Jarrett Company, Norfolk, Ya., wbicb tbe defendant wrongfully and unlawfully refused to receive and issue a bill of lading for. We infer from this that Wade, N. 0., is a regular station of tbe defendant and that loose lumber (not loaded'by tbe shipper in cars) is an article of the nature and kind usually received by railroads for transportation. But these facts can be best determined upon tbe trial.

2. Tbe question of tbe measure of damage cannot be considered upon demurrer. If tbe allegations of tbe complaint be sustained tbe plaintiffs will be entitled to recover some damage, if only nominal. Tbe true measure of damage can best be determined when all tbe facts are before tbe court.

3. Whether this transaction conies within the purview of tbe interstate commerce law, so as to relieve tbe defendant from a penalty for refusal to- receive tbe lumber for shipment to Norfolk, Ya., need not be discussed. In any event, tbe -plaintiffs would be entitled to recover tbeir actual damages, whether they could recover tbe penalty or not. But tbe writer regards tbe question as settled by this Court in tbe recent case of Lumber Co. v. R. R., 151 N. C., 23.

*281We notice in the judgment tbat tbe demurrer is overruled and the defendant taxed with, all the costs. There being no contention that the demurrer is> frivolous, the judgment should have been that the defendant answer over.

As modified, the judgment is

Affirmed.