Charles v. Atlantic Coast Line R. Co.

• Decision Date: 31 August 1907
• Citation: 58 S.E. 927,78 S.C. 36
• Parties: CHARLES v. ATLANTIC COAST LINE R. CO.
• Court: South Carolina Supreme Court

58 S.E. 927

78 S.C. 36

CHARLES v. ATLANTIC COAST LINE R. CO.

Supreme Court of South Carolina

August 31, 1907

Appeal from Common Pleas Circuit Court of Florence County; Geo. W Gage, Judge.

Action by R. Keith Charles against the Atlantic Coast Line Railroad Company. Judgment for plaintiff. Defendant appeals. Affirmed.

Willcox & Willcox, for appellant.

Galletly & Ragsdale, for respondent.

JONES J.

This action was brought in a magistrate court to recover the value of four sacks of rice alleged to have been shipped from New Orleans, La., by Martin J. Wynne to the plaintiff at Timmonsville, S. C., and to have been lost while in the possession of the defendant carrier, and also to recover $50 penalty for failure to adjust and pay the claim within 90 days, as prescribed by the act of February 23, 1903. The magistrate gave judgment against defendant for the amount claimed, $68.48, which judgment on appeal was affirmed by the circuit court.

We notice first appellant's seventh and eighth exception alleging error in finding that the rice sued for was lost while in the possession of the defendant, there being no testimony whatever tending to show such fact. The circuit court found that "the defendant presented to and collected from the plaintiff a freight bill for 30 sacks of rice, and marked on the bill, '4 sacks short,' *** that it was warrantable to conclude that the four sacks of rice did come into the possession of the defendant company for it collected the freight on the four sacks, and declared that the rice was missing. Enough was proven to cast on the defendant company the burden of proving that, when the shipment reached its line, four sacks were then missing. The defendant alone knew the fact, and it did not prove it." The plaintiff was the only witness examined in the case and his testimony warranted the conclusion of the circuit court, if his testimony on this point was admissible. The fifth exception charges that it was error to admit in evidence the freight bill, Exhibit F, on the ground of irrelevancy. It appears from the exhibit that defendant collected from plaintiff $13.50 freight for transporting "30 pkts. rice," and that the consignor was "M. J. W.," and that four sacks were short. Plaintiff testified that in August, 1905, he ordered Martin J. Wynne of New Orleans to ship 30 bags of rice, and paid him for the same, and that he paid the freight for 30 bags, and only received 26. There was no evidence of any other order by plaintiff for rice or shipment of rice to plaintiff during the period involved in the controversy. The freight bill and its payment with this statement indorsed thereon was clearly relevant. It tended to show a single shipment of 30 bags of rice to plaintiff by one whose initials were the same as those of the alleged shipper, and that charge was made by defendant for transporting that number of bags, coupled with an admission that four were missing. This was at least sufficient to make out a prima facie case of loss while in the possession of defendant, and to cast upon defendant the burden of showing that the loss did not occur on its line. Willett v. Railway, 66 S.C. 478, 45 S.E. 93; Walker v. Railway, 76 S.C. 309, 56 S.E. 952.

The foregoing conclusion renders it immaterial to consider the third and fourth exceptions to the admission of testimony by the magistrate, for it may be conceded that it was error to admit in evidence a bill of lading purporting to be issued by the Louisville & Nashville Railroad Company for 30 sacks of rice consigned by Martin J. Wynne to plaintiff, without some proof that it was in fact issued to the consignor by an authorized agent, and that it was also error to allow in evidence a bill for 30 packages of rice rendered to plaintiff by Martin J. Wynne, dated August 23, 1905, containing the words, "shipped via L. & N. Rd.," being the mere statement of Martin J. Wynne not examined in this case, still the error was harmless, as this testimony may be stricken from the record, and leave undisputed testimony sufficient to sustain a judgment for the loss of the goods while in defendant's possession. Section 368 of the Code of Civil Procedure of 1902 requires that on appeals from magistrate's court judgment should be rendered according to the justice of the case, without regard to technical errors and defects, which do not affect the merits.

The first and second exceptions allege error in permitting plaintiff to testify that he had purchased 30 bags of rice from Martin J. Wynne without producing the written order and acceptance therefor admitted to be in existence. This not being a suit between plaintiff and Martin J. Wynne touching the purchase of the rice; and, defendant's liability being dependent not upon such contract of purchase, but upon its possession for transportation of goods consigned to plaintiff, the contract in question involved merely a collateral matter, as to which parol testimony was admissible. Elrod v. Cochran, 59 S.C. 470, 38 S.E. 122.

The ninth exception assigns error in not reversing the judgment of the magistrate for the statutory penalty, after having held that the claim in question arose out of an interstate shipment, and that the penalty statute was invalid as to interstate shipments. What the circuit court really held was...