Mims v. Seaboard Air Line Ry.

Decision Date01 July 1904
Citation48 S.E. 269,69 S.C. 338
PartiesMIMS v. SEABOARD AIR LINE RY.
CourtSouth Carolina Supreme Court

Appeal from Common Pleas Circuit Court of Lexington County; Frank B Gary, Special Judge.

Action by Allen Mims against the Seaboard Air Line Railway. From judgment for plaintiff, defendant appeals. Affirmed.

Lyles & McMahan and Efird & Dreher, for appellant. G. T. Graham and A. D. Martin, for respondent.

GARY A. J.

The exceptions assign error on the part of his honor the presiding judge (1) in refusing to grant a nonsuit; (2) in refusing to direct a verdict; and (3) in refusing to grant a new trial. In considering the questions presented by the exceptions, it will be necessary to refer to the third fourth, and fifth paragraphs of the complaint, which are as follows:

"(3) That on the 26th day of September, 1902, the defendant, through its agent, C. B. Ryan, with intent to injure plaintiff, negligently, recklessly, wantonly, and willfully telegraphed its station agent at Swansea, in the county of Lexington and state aforesaid, and instructed him and directed him to deliver to plaintiff three tickets to Savannah, Ga., and directed its said agent at Swansea to instruct plaintiff to call upon the union depot or station agent in the city of Savannah, Ga., upon his arrival there for three tickets from said city of Savannah, Ga., to Citronelle, Fla., and that said tickets would be forthwith delivered to him upon demand, and that plaintiff would be conveyed from Savannah, Ga., to Citronelle, Fla., at which last-named place plaintiff had a position that would have paid him twenty-five dollars per month, of which defendant had knowledge and notice.
(4) That upon receipt of said telegram and instructions from C. B. Ryan, who was the agent and servant of the defendant, and acting within the scope of his authority as such agent, the station agent of the defendant at Swansea aforesaid, on or about the 30th of September, 1902, delivered to plaintiff three tickets from Swansea aforesaid to Savannah, Ga., and directed him to call on the union depot agent or station agent in Savannah, Ga., upon his arrival there, and then and there assured plaintiff that said union depot or station agent would immediately upon demand deliver to plaintiff three tickets to Citronelle, Fla., and that he would be safely conveyed to Citronelle, Fla., aforesaid; and, acting upon the representations so made to him by the agents and servants of the defendant as aforesaid, and believing said statements were true, and that said tickets would be delivered to him by the union depot or station agent in the city of Savannah, Ga., upon demand, as he had been assured they would be, and that he would be conveyed to Citronelle, Fla., as defendant's agent and servants assured him that he would be, plaintiff, in company with another person, boarded one of defendant's passenger trains at Swansea aforesaid, and was conveyed to Savannah, Ga.
(5) That upon his arrival in Savannah, Ga., on or about the 30th day of September, 1902, plaintiff applied to the union depot or union ticket agent at Savannah, Ga., for tickets to said Citronelle, Fla., and demanded that said tickets be forthwith delivered to him, and then and there informed said agent that the station agent at Swansea had directed plaintiff to call upon him for tickets to Citronelle, Fla., and had assured him that he, the said union depot or station agent, would deliver said tickets to him to Citronelle, Fla., aforesaid, upon demand, and at the same time exhibiting to him the telegram of the said C. B. Ryan to the said station agent at Swansea in regard to said matter; and, although plaintiff insisted upon the delivery of said tickets to him, and actually made the same demand on other agents of the defendant in said city of Savannah, Ga., but regardless of its solemn promise and agreement, and regardless of its duty, and in utter disregard of the rights of the plaintiff, the defendant, its agents and servants, negligently, recklessly, wantonly, and willfully refused to deliver said tickets, or any or either of them, to plaintiff, and refused to convey, or have plaintiff conveyed, to Citronelle, Fla., aforesaid."

The defendant denied the material allegations of the complaint, and alleged the following facts: "That on or about the 25th day of September, 1902, the defendant's general passenger agent received a request from an officer of the Atlantic Coast Line Railroad that he instruct the Seaboard's agent at Swansea to furnish three tickets to Mims from Swansea to Savannah, Ga., with instructions to Mims from said Atlantic Coast Line Railroad to call on the depot ticket agent of the Atlantic Coast Line Railroad at Savannah for three tickets over the said Atlantic Coast Line Railroad from Savannah, Ga., to Citronelle, Fla.; that the instructions were given to the defendant's agent at Swansea, and the three tickets were thereafter furnished to the said Mims, the plaintiff herein, and the instructions from the Atlantic Coast Line Railroad were given to him, and the said Atlantic Coast Line Railroad thereafter paid the defendant for said tickets so furnished and used from Swansea, S. C., to Savannah, Ga."

The jury rendered a verdict in favor of the plaintiff for $300.

The defendant appealed upon the following exceptions:

"(1) Because his honor the presiding judge erred in refusing to grant defendant's motion
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