56 S.E. 952 (S.C. 1907), Walker v. Southern Ry. Co.

Citation56 S.E. 952, 76 S.C. 308
Opinion JudgeWOODS, J.
Party NameWALKER v. SOUTHERN RY. CO.
AttorneySanders & De Pass and Townsend & Townsend, for appellant. J. Ashley Sawyer, for respondent.
Case DateMarch 14, 1907
CourtSupreme Court of South Carolina

Page 952

56 S.E. 952 (S.C. 1907)

76 S.C. 308

WALKER

v.

SOUTHERN RY. CO.

Supreme Court of South Carolina

March 14, 1907

Appeal from Common Pleas Circuit Court of Union County; Prince, Judge.

Action by A. P. H. Walker against the Southern Railway Company. Judgment for plaintiff. Defendant appeals. Affirmed.

Sanders & De Pass and Townsend & Townsend, for appellant. J. Ashley Sawyer, for respondent.

WOODS, J.

The Louisville & Nashville Railroad Company received from the plaintiff, Walker, at Louisville, Ky., nine horses, to be delivered at Jellico, the junctional point, to the defendant, the Southern Railway Company, for carriage to Union, S. C., the ultimate destination. Only eight horses were found in the car on its arrival at Union. The plaintiff made out his claim against the Southern Railway Company for $142.50, the price paid for the missing horse in Louisville, attaching the bill of lading which had been sent to him. When the plaintiff went to the station at Union

Page 953

to present his claim, the agent in general charge of the office was absent, and the claim was filed with the cashier of the office, who acted for the agent in charge when he was out. The claim was not paid in 90 days, whereupon the plaintiff brought this action, alleging as a first cause of action damages for the loss of the horse to the amount of $300, and as a second cause of action the liability of the defendant for the statutory penalty of $50 for failure to adjust and pay within 90 days the [76 S.C. 310] claim filed. The plaintiff recovered judgment for $225. The appeal relates to three defenses set up in the answer: (1) Delivery by the defendant to the plaintiff of all the horses received by it from the Louisville & Nashville Railway; (2) limitation in the bill of lading issued by the Louisville & Nashville Railroad Company to liability of $75 for each horse; (3) failure by the plaintiff to file his claim with the agent of the defendant at the point of destination, such filing being, under the statute, a condition precedent to the recovery of the penalty demanded.

1. Error is assigned in the refusal to grant a motion for a nonsuit on the ground that there was no evidence showing the lost horse ever came into possession of the defendant. It was said in Willett v. Railway, 66 S.C. 478, 45 S.E. 93: "The general rule is that the burden is on the carrier which delivers the goods to the consignee to respond to any damage which occurs in transit, or show that it was done while in the hands of some other carrier. This rule has never been under judicial discussion in this state, but it is supported by the great weight of authority elsewhere." The application of this rule to the case now under consideration is denied by the defendant, because this is not a case of damage to goods received by the initial carrier in good order and delivered by the terminal carrier in a damaged condition, but of the complete loss of a part of the property shipped. Authority has been adduced in favor of the view that a presumption of loss by the terminal carrier does not arise where no part of the goods...

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