Kolb v. Southern Ry. Co.
| Decision Date | 16 November 1908 |
| Citation | 62 S.E. 872,81 S.C. 536 |
| Parties | KOLB v. SOUTHERN RY. CO. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court, Sumter County; J. C. Klugh Judge.
Action by H. Spurgeon Kolb against the Southern Railway Company. From the judgment, plaintiff appeals. Affirmed.
A. B Stuckey, for appellant.
B. L Abney and E. M. Thomson, for respondent.
On August 25, 1905, the Continental Gin Company of Prattsville Ala., delivered to the Louisville & Nashville Railroad Company two gins, with condensers, pulleys, and attachments, consigned to plaintiff at Toumeys, S.C. The shipment was transferred to the defendant company at Atlanta, Ga., on September 7, 1905, and arrived at Sumter, S. C., on September 19, 1905, with certain parts of the machinery broken. This action was brought to recover $10 damages for injury to the machinery and $200 as special damages arising from the fact that plaintiff conducted a public ginnery and by reason of the unreasonable and negligent delay in transportation plaintiff was damaged in the loss of customers and profits during such busiest portion of the ginning season. Plaintiff also claims $100 as special damages in loss of customers and profits arising from a week's further delay in replacing the broken parts of the machinery necessary to its operation. There was no testimony that any notice was given to the Louisville & Nashville Railroad Company at the time of the original shipment, nor to defendant's agent at Atlanta, when defendant received said shipment, of the circumstances which gave rise to the special damages claimed. There was testimony that about August 31, 1905, the plaintiff inquired of defendant's agent at Toumeys and at Sumter about the gins, telling them that he needed them very badly, and that the agents said they would see about the matter, that such inquiry was made on several occasions thereafter, and that agents informed him that they knew nothing of the shipment but would attend to it. Judge Klugh excluded evidence of the special damages and charged the jury that, in order to recover damages for loss of patronage as a public ginner, plaintiff must allege and prove that when the gins were shipped or received for shipment the carrier had notice that the gins would be used for purposes of running a public ginnery, and that delay would cause plaintiff a special loss, and that there was no such allegation in the complaint. The jury rendered a verdict for $10 damages, and plaintiff appeals on exceptions to the said rulings of the court as to special damages.
The exceptions cannot be sustained. The general rule is that special damages for losses arising from failure to deliver goods within a reasonable time cannot be recovered except upon allegation and proof that defendant had notice of the special circumstances at the time of the shipment. Traywick v. Railway, 71 S.C. 82, 50 S.E. 549, 110 Am. St. Rep. 563; Wesner v. Railway Co., 71 S.C 211, 50 S.E. 789; Guess v. Railway Co., 73 S.C. 264, 53 S.E. 421; Milhouse v. Railway Co., 74 S.C. 351, 55 S.E. 764; McKerall v. Railway Co., 76 S.C. 338, 56 S.E. 965; Strange v. Railway Co., 77 S.C. 185, 57 S.E. 724; Matheson v. Railway Co., 79 S.C. 157, 60 S.E. 437. The same general principle is applied in telegraph cases. Mood v. Tel. Co., 40 S.C. 528; Rogers v. Tel. Co., 72 S.C. 293, 51 S.E. 773; Smith v. Tel....
To continue reading
Request your trial