The opinion
Merrimon, C. J.,
(dissenting): I do not concur in the opinion of the Court, and will state some of the grounds of my dissent.
The defendant is a common carrier of numerous kinds and classes of freights, including gold and silver, coined and uncoined, treasury notes, bank notes, public and private securities, gems, jewelry and the like. It is not, however, such carrier of all kinds and classes of freights; it carries mainly such as require to be transported quickly, and, generally, such as are not very ponderous.
A leading and distinctive feature of its purpose is lo transport and deliver such freights as it carries certainly, promptly and expeditiously. It is not a warehouseman or despository of freights of any kind; it simply and only receives the same for such transportation, and it holds, or should hold them, for that purpose as short a time as practicable in the *296 orderly course of business. In the nature of its business it is to be charged with freights for the purpose, and only for the purpose, of transportation and liabilities properly incident thereto.
It has the right to prescribe reasonable and appropriate rules and regulations not in contravention of law for the conduct of its business,, having in view the safety, protection and preservation of freights carried by it, and, as well, the protection of itself against fraud, injury and undue risk and liability. It may require that shippers shall deliver their articles to be transported within a reasonable time next before in the order of business the same shall be put on the vehicle or other means of transportation — usually railroad cars — and sent on their way to their destination. The shipper has no right to compel the defendant to accept freights an unnecessary and.unreasonably long time before the time of starting the same on the way. Thus, if the train of cars on the railroad should start at 12 o’clock m., the shipper could not compel the defendant to receive ordinary express freight the evening next before that time, and thus compel it to assume the risk of keeping it during the night and morning following. This is so, because the nature of the business does not require that the defendant shall have the freights during that time, and such risk does not come within the nature and purpose of the defendant as 'a common carrier. It has the right, by appropriate and reasonable regulations, to require that the articles to be shipped shall be delivered to it within the time necessary to enable it to ship the same by the express on its next ensuing trip. Reasonable time to prepare the freight for such shipment must be allowed — not more can be required — for the mere convenience or advantage of the shipper, or to enable him to avoid a risk and put the same on the defendant, that justly ought to rest upon himself.
*297 If the law were otherwise, the shipper of money or other things of great value, and hazardous in their keeping, might subject the defendant to a risk for hours—in some cases, for a day and night, or longer perhaps, not necessary or properly incident to its business and duties, and which the shipper himself ought to bear. Thus, one intending to send by the next express one hundred thousand dollars in gold coin, might, the evening next before the day it would start at 12 o’clock m., on purpose to avoid risk himself, compel the defendant to assume the risk of keeping the money during the meantime, not because such keeping was incident or at all necessary to its business or duties, but to disburden the shipper. It would be alike unnecessary, unreasonable and unjust to thus burden the defendant. We cannot conceive of a reason of justice, of necessity or policy that makes it necessary or proper to do so.
The defendant was bound to receive the money tendered to its agent for transportation by the plaintiff within a reasonable time next before the departure of the next express going in the direction of the destination of the money; that is, within such time as the defendant’s agent could, in the order of business, receive the money and prepare it for shipment. What such reasonable time is, cannot be determined by any uniform or precise rule. This must depend upon a variety of facts and circumstances, the place, the volume of business done there, the articles to be shipped, and like considerations. The time must be sufficient to receive and ship the goods by the next express, as above indicated. McRae v. Railroad, 88 N. C., 526 ; Burton v. Railroad, 88 Id., 536: 1 Red. on Railways, § 26, et seq; 2 Par. on Contracts, 174, 5 Ed.; Lane v. Cotton, 1 Ld. Ray., 352.
The plaintiff tendered the money early in the evening next before the day the next express was to go at 12 o’clock and 45 minutes of that day, and he insists that he had the right then to present' and have it received, and as the agent *298 refused to receive it then, the defendant at once became liable for the penalty prescribed and given by the statute, (The Code, § 1964) and sued for in this action. The question whether this contention is well founded, or not, must be determined by a proper interpretation of the statute just cited. It prescribes that, “ agents or other officers of railroads and other transportation companies whose duties it is to receive freights shall receive all articles of the nature and kind received by such company for transportation whenever tendered at a regular depot, station, wharf or boat-landing, and shall forward the same by the route selected by the person tendering the freight under existing laws and the transportation company, represented by any person refusing to receive such freight, shall be liable to a penalty of fifty dollars, and each article refused shall constitute a separate offence.” It is conceded that the ' material words, “ whenever tendered ” used are not to be taken literally. To so treat them, would lead to practical and ridiculous absurdity. As employed, they do not imply at any and all times, as when the agent is taking his meals, while he may be reposing at night — at midnight, or daybreak, or at sunrise, or on Sunday. These words must receive a reasonable and just interpretation in the light of the business to which the statute applies, and which it is intended, in some measure, to regulate. Thus interpreted, I think they fairly imply, whenever the freight shall be tendered to the agent or officer of the company in the regular, orderly course of business, when the articles to be shipped ought to be received for that purpose — that is, within the time it is the duty of the carrier, having in view its nature and purpose, to receive the freights tendered. These words do not imply that the carrier shall receive the freights so tendered and keep them in a warehouse for an indefinite and unnecessary length of time, before, in the order of business, they can be shipped on the way to'their destination. It is not the business of such com *299 panies, as common carriers, to thus store and keep freights— it is their business and purpose to transport them promptly, and the purpose of the statute is to compel them to do this by imposing penalties in case they fail to do so. It was not the purpose of the Legislature to enlarge the scope of the duties and purposes of such companies — there is nothing in the statute that so provides, in terms or by just implication— the simple purpose was to compel them to a prompt and faithful discharge of their common-law duties. This Court has so repeatedly decided. Branch v. The Railroad Company, 77 N. C., 347 ; Whitehead v. The Railroad Company, 87 N. C., 255 . In this view, the words, “ whenever tendered,” must mean whenever tendered as I have pointed out above. This seems to me to be the only reasonable meaning of the words as employed. Any other interpretation of them, would leave their meaning so loose and indefinite as to render their application impracticable.
Other words of the statute, as well as its spirit, strengthen the view I have thus expressed. The statute applies to companies “ whose duties”—not simply in the sense of business—are to receive freights, to receive them in th'e order of business when they must be received to be promptly shipped on the way. Such freights must be “ tendered at a regular depot, station,” &c., the shipper “tendering the freight under existing laws,” not simply under statutory regulations, but as well under general principles of law applicable, such as that which requires that freights shall be received only within a reasonable time next before they are to be sent on the way to their destination. The interpretation given these words harmonizes, too, with the other statutory provision (The Code, § 1963), prescribing rules of transportation for railroad companies, wherein it is provided that such companies “ shall furnish sufficient accommodation for the transportation of all such passengers and property as shall, within a reasonable time previous thereto, be offered at the *300 place of starting,” &c. This provision is simply in affirmance of a general principle applicable, and it indicates the spirit and purpose of sundry statutory regulations that apply to railroad companies, and other companies that are common carriers, including that under consideration.
It is said that this interpretation of the statute would not accommodate the convenience of persons who might-occa-sionly go a considerable distance to ship money or other like things. This objection is without force. It was not the duty of common carriers to provide for such exceptional cases, and, as we have seen, the statute does not enlarge the scope of this duty; its purpose is to compel a due discharge of the same. All shippers are placed on the same and equal footing, and it is their duty to observe and learn the orderly course of business —it is their own neglect, if they wi.ll not. In the absence of any particular regulation as to the time freights should be tendered, the law provides that it shall be done within such reasonable time as will enable the carrier to ship the goods on the way by the next express after the tender.
The precise rule and practice of the defendant to be observed in receiving freights for shipment does not appear, but it does appear affirmatively that the plaintiff did not tender the money to be shipped, to the agent, within a reasonable time next before the departure of the next express going in the direction of the destination of the money. It was tendered fifteen or twenty hours, or more, before the next departure, a night intervening. The agent expressly notified the plaintiff of the rule, and that he would receive the money if tendered the next morning. The defendant had the right to decline to receive it until the next day in the forenoon —it was not bound to receive and keep it for the plaintiff during the night; if it had been received the next morning, ample time—several hours—would have been afforded to prepare it in all respects for shipment by'the next express.