Cummins v. Atlantic Coast Line R. Co.

• Decision Date: 20 August 1907
• Citation: 58 S.E. 944,78 S.C. 8
• Parties: CUMMINS v. ATLANTIC COAST LINE R. CO.
• Court: South Carolina Supreme Court

58 S.E. 944

78 S.C. 8

CUMMINS v. ATLANTIC COAST LINE R. CO.

Supreme Court of South Carolina

August 20, 1907

Appeal from Common Pleas Circuit Court of Charleston County Aldrich, Judge.

Action by E. L. Cummins against the Atlantic Coast Line Railroad Company. From an order overruling a demurrer, the defendant appeals. Affirmed.

W Huger Fitzsimons and T. Moultrie Mordecai, for appellant.

Legare & Holman, for respondent.

GARY A. J.

This is an action to recover damages for the alleged delay in the transportation of freight.

The complaint sets forth three causes of action, the first of which alleges "that on the 8th day of May, 1905, the plaintiff delivered to the defendant, at Meggetts, S. C., a station on its line of road, 220 crates of cabbage; that the same were received for transportation to the city of New York, there to be delivered to certain commission merchants for sale for the account of the plaintiff, that the cabbage should have been delivered to the said commission merchants on the 11th day of May, 1905, but that the same were unreasonably delayed in transportation for one day, and were not delivered until the 12th day of May, 1905; that, by reason of such delay in transportation, the cabbage were rendered worthless, and the same resulted in a total loss to the plaintiff; that, if said cabbage had been received in due time and in good condition, the plaintiff could have realized a net profit of 85 cents per crate, whereby the plaintiff has been damaged in the sum of $187." The second and third causes of action are similar to the first. The defendant demurred to the complaint, and to each cause of action, on the ground that it did not state facts sufficient to constitute a cause of action; (1) in that it is not alleged that the delay was negligent; and (2) in that it is alleged that the delay was only one day, which is not sufficient to raise the presumption of negligence. The demurrer was overruled, and the defendant appealed.

The plaintiff had the right to bring his action either ex contractu or ex delicto (Pickens v. Railroad, 54 S.C. 498, 32 S.E. 567); and, even conceding that the allegations are not sufficient to constitute a cause of action founded upon tort, they nevertheless are appropriate to a cause of action based upon contract. The ruling of his honor, the presiding judge, is not only in harmony with the doctrine prevailing generally, but is sustained by the decisions...