Venning v. Atlantic Coast Line R. Co.

• Decision Date: 31 August 1907
• Parties: VENNING v. ATLANTIC COAST LINE R. CO.
• Court: South Carolina Supreme Court

58 S.E. 983

78 S.C. 42

VENNING v. ATLANTIC COAST LINE R. CO.

Supreme Court of South Carolina

August 31, 1907

Appeal from Common Pleas Circuit Court of Clarendon County.

Action by S. R. Venning against the Atlantic Coast Line Railroad Company. From circuit judgment affirming judgment of the magistrate, defendant appeals. Reversed.

The following are the statutes referred to and considered in the opinion:

Civ Code 1902, § 1710:

"When under contract for shipment of freight or express over two or more common carriers, the responsibility of each or any of them shall cease upon delivery to the connecting line 'in good order,' and if such freight or express has been lost, damaged or destroyed, it shall be the duty of the initial, delivering or terminal road, upon notice of such loss, damage or destruction being given to it by the shippers, consignee, or their assigns, to adjust such loss or damage with the owners of said goods within forty days and upon failure to discharge such duty within forty days after such notice, or to trace such freight and inform the said party so notifying when, where and by which carrier the said freight or express was lost, damaged or destroyed within said forty days, then said carrier shall be liable for all such loss, damage or destruction in the same manner and to the same extent as if such loss, damage or destruction occurred on its lines: Provided, that if such initial, terminal or delivering road can prove that, by the exercise of due diligence, it has been unable to trace the line upon which such loss, damage or destruction occurred, it shall thereupon be excused from liability under this section."

24 St. at Large, p. 1:

"An act to further define connecting lines of common carriers and to fix their liabilities.

"Section 1. Be it enacted by the General Assembly of the state of South Carolina, that all common carriers over whose transportation lines, or parts thereof, any freight, baggage or other property received by either of such carriers for through shipment or transportation by such carriers on a contract for through carriage, recognized, acquiesced in or acted upon by such carriers, shall in this State, with respect to the undertaking and matters of such transportation, be considered and construed to be connecting lines, and be deemed and held to be the agents of each other, each the agent of the others, and all the others the agents of each, and shall be held and deemed to be under a contract with each other and with the shipper, owner and consignees of such property for the safe and speedy through transportation thereof from point of shipment to destination; and such contract as to the shipper, owner or consignee of such property shall be deemed and held to be the contract of each of such common carriers; and in any of the courts of this state, any through bill of lading, way bill, receipt, check or other instrument issued by either of such carriers, or other proof showing that either of them has received such freight, baggage or other property for such through shipment or transportation, shall constitute prima facie evidence of the subsistence of the relations, duties and liabilities of such carriers as herein defined and prescribed, notwithstanding any stipulations or attempted stipulations to the contrary by such carriers, or either of them.

"Sec. 2. For any damages for injury, or damage to, or loss, or delay of any freight, baggage or other property sustained anywhere in such through transportation over connecting lines, or either of them, as contemplated and defined in the next preceding section of this act, either of such connecting carriers which the person or persons sustaining such damages may first elect to sue in this state therefor, shall be held liable to such person or persons, and such carrier so held liable to such person or persons shall be entitled in a proper action to recover the amount of any loss, damage or injury it may be required to pay such person or persons from the carrier through whose negligence the losses, damage or injury sustained, together with costs of suit.

" SEC. 3. That this act shall take effect immediately upon its approval by the Governor, and all acts and parts of acts inconsistent with this act are hereby repealed.

"Approved the 13th day of May, A. D. 1903."

24 St. at Large, p. 81:

"An act to regulate the manner in which common carriers doing business in this state shall adjust freight charges and claims for loss or damage to freight.

"Section 1. Be it enacted by the General Assembly of the state of South Carolina, that from and after the passage of this act, all common carriers doing business in this State shall settle their freight charges according to the rate stipulated in the bill of lading: Provided, the rate therein stipulated be in conformity with the classification and rates made and filed with the Interstate Commerce Commission, in case of shipments from without this state, and with those of the railroad commissioners of this state, in case of shipments wholly within this state; by which classification and rates all consignees shall in all cases be entitled to settle freight charges with such carriers; and it shall be the duty of such common carrier to inform any consignee or consignees of the correct amount due for freight, according to such classifications and rates; and upon payment and tender of the amount due on any shipment, or on any part of any shipment, which has arrived at its destination, according to such classifications and rates, such common carrier shall deliver the freight in question to the consignee or consignees, and any failure or refusal to comply with the provisions hereof shall subject each such carrier so failing or refusing to a penalty of fifty dollars for each such failure or refusal, to be recovered by any consignee or consignees aggrieved by suit in any court of competent jurisdiction.

"Sec. 2. That every claim for loss of or damage to property while in the possession of such common carrier shall be adjusted and paid within forty days, in case of shipments wholly within this state, and within ninety days in case of shipments from without this State, after the filing of such claim with the agent of such carrier at the point of destination of such shipment: Provided, that no such claim shall be filed until after the arrival of the shipment, or of some part thereof, at the point of destination, or until after the lapse of a reasonable time for the arrival thereof. In every case such common carrier shall be liable for the amount of such loss or damage, together with interest thereon from the date of the filing of the claim therefor until the payment thereof. Failure to adjust and pay such claim within the periods respectively herein prescribed shall subject each common carrier so failing to a penalty of fifty dollars for each and every such failure, to be recovered by any consignee or consignees aggrieved in any court of competent jurisdiction: Provided, that unless such consignee or consignees recover in such action the full amount claimed, no penalty shall be recovered, but only the actual amount of the loss or damage, with interest as aforesaid: Provided, further, that no common carrier shall be liable under this act for property which never came into its possession, if it complies with the provisions of section 1710, vol. 1, of the Code of Laws of South Carolina, 1902.

"Sec. 3. That any common carrier, upon complying with the provisions of this act, shall have all the rights and remedies herein provided for against the common carrier from which it received the freight in question.

"Sec. 4. That causes of action for the recovery of the possession of the property shipped, for loss or damage thereto and for the penalties herein provided for, may be united in the same complaint.

"Sec. 5. That all acts or parts of acts inconsistent with this act be, and the same are hereby, repealed.

"Approved the 23d day of February, A. D. 1903."

P. A. Willcox, Henry E. Davis, and Wilson & Du Rant, for appellant.

W. C. Davis, for respondent.

WOODS J.

The Belknap Hardware Company, in January, 1905, delivered to the Southern Railway Company at Louisville, Ky., a steel range and warming closet, consigned to the plaintiff at Manning, S.C. The defendant, Atlantic Coast Line Railroad Company, the terminal carrier, delivered to the plaintiff the warming closet only, and this action was brought in a magistrate's court to recover $21 for failure to deliver the range and $50, the statutory penalty for failing to adjust and pay the claim within 90 days. The allegation of the complaint is that the Southern Railway Company undertook carriage and delivery of the goods to Manning, S. C., for itself and the defendant, its connecting line. But the bill of lading expressly provides: "No carrier shall be liable for loss or damage not occurring on its portion of the route." The defendant's clerk, whose duty it was to check the contents of cars turned over by the Southern Railway to the Atlantic Coast Line Railroad at Columbia, testified the range was marked short on his book and was never received by the Atlantic Coast Line Railroad. The magistrate rendered judgment in favor of the plaintiff for $21 for failing to adjust and pay the claim in 90 days, and on appeal the circuit court affirmed the judgment.

1. It was held in Willett v. Railway Co., 66 S.C. 477, 45 S.E. 93, that when property received by the initial carrier in good condition is delivered by the terminal carrier in damaged condition, the burden is on the terminal carrier to show the damage did not occur on its own line. The same principle was held to apply to the loss of a part of a car load of goods in Walker v. Railway Co., 76...