Goldstein v. Southern Ry. Co.

• Decision Date: 13 July 1908
• Parties: GOLDSTEIN v. SOUTHERN RY. CO.
• Court: South Carolina Supreme Court

61 S.E. 1007

80 S.C. 522

GOLDSTEIN v. SOUTHERN RY. CO.

Supreme Court of South Carolina

July 13, 1908

Appeal from Common Pleas Circuit Court of Spartanburg County; R. O Purdy, Judge.

Action by R. Goldstein against the Southern Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

J. B Atkinson and Abney & Muller, for appellant.

S. G Finley, for respondent.

POPE C.J.

This was an action begun in Magistrate R. B. Palsey's court for the recovery of the sum of $22.85, for goods lost in transit by the defendant, and for the statutory penalty of $50 for failure to settle the claim within 90 days, and for $25 damages for recklessness in shipping said freight. The magistrate gave judgment for the plaintiff in the sum of $22.85, but refused the penalty. The plaintiff then appealed to the circuit court, Judge R. O. Purdy, presiding, who reversed the judgment of the magistrate, and gave the plaintiff the right to enter up judgment for the penalty ($50), as well as the amount found by the magistrate. From this order of Judge Purdy, the defendant now appeals to this court, upon three grounds, which we will consider in their order.

"(1) Because his honor erred in holding that the penalty provided by the statute attached without a filing of the claim, as required by the terms of the statute, by reason of the waiver by the defendant company of its right to have the claim filed and its promise to pay the same.

"(2) That his honor erred in holding that the requirements of the statute could be waived."

An investigation of the case shows that the plaintiff filed with the agent of the defendant the bill of lading, invoice of goods, and a list of the shortage, as a claim, and that this was done within 90 days. Not only was the matter filed, but a promise to pay the same was made by the agent, and afterwards a letter was written by the defendant, through its freight claim agent, J. J. Hooper, referring to the above claim, and promising that the same would be closed out promptly. It makes no difference that the claim was filed by the agent himself. It was done at the request and at the instance of the plaintiff, and in his presence. All this was done in carrying out the requirements of "An act to regulate the manner in which the common carriers doing business in this state shall adjust freight charges and claims for loss of or damage to freight." 24 Stat. at Large, p. 81. The magistrate...