American Fruit Growers, Inc. v. King

• Decision Date: 20 November 1922
• Docket Number: 11055.
• Citation: 114 S.E. 861,122 S.C. 69
• Parties: AMERICAN FRUIT GROWERS, INC., v. KING ET AL.
• Court: South Carolina Supreme Court

114 S.E. 861

122 S.C. 69

AMERICAN FRUIT GROWERS, INC., v. KING ET AL.

No. 11055.

Supreme Court of South Carolina

November 20, 1922

Appeal from Common Pleas Circuit Court of Charleston County; Edward McIver, Judge.

Action by the American Fruit Growers, Inc., against S. B. King and the Atlantic Coast Line Railroad Company and others. Judgment for plaintiff against the second named defendant, and second named defendant appeals. Affirmed.

See also, 116 S.C. 226, 107 S.E. 924. King Bros.' fifth request, referred to in the opinion follows:

(5) The jury are instructed that, where property is tendered and accepted for shipment prior to the signing and issuance of a bill of lading, liability attached to the railroad as a common carrier from that time, to wit, from the time it was received and accepted by them for shipment, regardless of the fact that the bills of lading were not issued until later.

The Court: I charge you that is good law. A bill of lading is nothing more than a receipt, and, if they accepted it, it is not necessary to have a receipt or bill of lading in order to attach liability to the company if they did in fact actually accept it and it was delivered to them.

The exceptions of the appellant are as follows:

First. Because the presiding judge refused the motion for nonsuit made upon the ground that the plaintiff had not connected the Atlantic Coast Line as the intermediate carrier to New York in a through shipment by the statement of the agent on the dock that he would take the truck and care for it, that not being sufficient to fix liability upon the defendant railroad company.

Second. Because the presiding judge erred in refusing to grant the motion to direct a verdict in its favor made by the defendant railroad company upon the grounds fully hereinbefore set forth.

Third. Because the presiding judge erred in excluding testimony offered on behalf of the appellant to show that the appellant did not and could not have accepted the shipment because of labor troubles or strike upon the wharf when said shipment was offered to it, the said testimony being that of P. Nichols, and J. C. Bolchoz. The said P. Nichols being asked, "Did you have any conversation with any one else on the dock representing this matter with reference to the condition of the labor?" objection was made, whereupon the court ruled as follows: "It would be objectionable but it would be competent so far as Mr. King is concerned. I think when you turn your freight over to some one to deliver his knowledge would be your knowledge; he would be your agent"--the error assigned being that the appellant was thus deprived of a line of testimony directly supporting a special defense set up in its answer, although no demurrer had been interposed for such defense, and no motion to strike it out had been made.

Fourth. Because the presiding judge erred in excluding the following question asked of the witness P. Nichols on his direct examination and the answer thereto: Q. Is there anything else that occurs to you that you might like to refer to? A. No, sir; there is nothing except that at all times on the wharf we acted as an intermediate carrier. We have no means of going to river landings, but other common carriers do go there. Q. Your obligation in this was only as an intermediate carrier? The Court: That is largely a question of law--the error being that the court held to be a question of law the fact whether or not the defendant-appellant was an intermediate carrier, assuming the obligations of such whereas that matter is a question of fact as well as of law, and the ruling of the court necessarily affected with the jury the answer of the witness to the first question above asked, and deprived the appellant of such testimony in the consideration by the jury.

Fifth. Because the presiding judge erred in sustaining the plaintiff's objection to the following question asked the same witness: Q. As a matter of fact the Mt. Pleasant Transportation Company is a participating carrier? Which question was objected to, and the court ruled that that was a matter of law, the error assigned being that whether the appellant was a participating carrier was a mixed question of law and fact, and the witness should have been allowed to answer the question so far as the fact was concerned, and the ruling of the court was calculated to mislead the jury in the consideration of other testimony given by the same witness as to the division of the freight.

Sixth. Because the presiding judge erred in charging the jury as follows: "Just at this point there is a difference between liability as a common carrier and liability as a warehouseman"--and then proceeding to explain to the jury the liability of common carriers and of warehousemen, which, while a correct statement of the law as to such liabilities respectively, was inapplicable to the case for the reason that the appellant was charged in the complaint, and so defended the action, as a common carrier, and not as a warehouseman, and was not in any event to be held responsible for the condition of the boat upon which the shipment was brought to its wharf.

Seventh. Because the presiding judge erred in charging the jury as follows: "The transportation company is a private carrier and is not an insurer; King Bros. is a private carrier, not a public carrier"--and in further instructing the jury immediately thereafter as to the responsibility of a private carrier, the error assigned being that the undisputed evidence was that the Mt. Pleasant Transportation Company was the real party contracting with the shipper and consignee and that the other persons named in the evidence, to wit. Murphy and King, were the agents of that company, and the proof also being that Mt. Pleasant Transportation Company was a common carrier.

Eighth. Because the presiding judge erred in refusing to charge appellant's first request as follows: "The jury is instructed that, if they find from the evidence that the damage done to the potatoes in question was due to the leaky condition of the barge on which they were loaded by their codefendants. King Bros., they can find no verdict against the defendant railroad company for such damage"--the error assigned being that the court refused the request because, while the court said it stated good law, it also said that it did not state all the law, and would be confusing to the jury; whereas it is submitted the appellant had a right to have the proposition submitted because it covered a distinct defense made in the answer which had not been stricken out on demurrer or motion.

Ninth. Because the presiding judge erred in commenting upon the appellant's second and fourth requests to charge in using the following language: "Unless the damage was caused by an act of God or the public enemy and if they received them as a warehouseman only, if they failed to act as a man of reason, prudence, and care would have acted under the circumstances, they would be liable"--the errors assigned being that this charge excluded from the consideration of the jury the special defense of labor troubles or strike, and also submitted to the jury the question of the responsibility of appellant as warehouseman when in fact it was sued as a common carrier, the contention of the plaintiff throughout being that the defendant had assumed that relationship to the shipment, and the defense of labor troubles and strike having been specifically set up in the answer as aforesaid.

Tenth. Because the presiding judge throughout his charge treated the Mt. Pleasant Transportation Company as a private carrier, and the defendants King Bros., as private carriers, when in fact the former was a public carrier under the evidence, and King Bros. the agents only of said Mt. Pleasant Transportation Company, thus depriving this appellant of its rights under the law in receiving the shipment from another common carrier.

Eleventh. Because the presiding judge erred in granting the defendants King Bros.' first request to charge as set out in the charge, the error assigned being that the judge thereby charged in respect to a matter of fact, that is to say, that whether or not a company is a private or common carrier is a question of fact to be determined under the evidence, and the undisputed evidence was that the Mt. Pleasant Transportation Company was a common carrier issuing the only receipt in evidence of the shipment, and King Bros. were their agents.

Twelfth. Because the presiding judge further erred in his comments upon the first and second requests to charge of the defendants King Bros., in defining the duties and in limiting the responsibilities of a private carrier, the error being that the said transportation company was a common carrier, and King Bros. their agents as aforesaid.

Thirteenth. Because the presiding judge erred in commenting upon the third request of the defendants King Bros. in saying that the appellant would be liable for any loss unless the loss was the result of an act of God or the public enemy, thus eliminating the said two special defenses of the appellant as to labor troubles and strike, and as to the leaky condition of the boat.

Fourteenth. Because the presiding judge erred in charging the fourth request of the defendants King Bros., and commenting thereon as follows: "(4) The jury are further instructed that, whenever a railroad company permits any one to place merchandise on or at its wharf or platform for the purpose of shipping without objection on its part and so acts as to lead the parties putting the said merchandise there to believe that it has accepted it for the purpose of shipping it, and it is afterwards destroyed while in their possession, under those circumstances, then, the company would be liable"--the error assigned

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