Farrell v. Atlantic Coast Line R. Co.

• Decision Date: 13 April 1909
• Citation: 64 S.E. 226,82 S.C. 410
• Parties: FARRELL v. ATLANTIC COAST LINE R. CO.
• Court: South Carolina Supreme Court

64 S.E. 226

82 S.C. 410

FARRELL v. ATLANTIC COAST LINE R. CO.

Supreme Court of South Carolina

April 13, 1909

Appeal from Common Pleas Circuit Court of Dorchester County; R. W Memminger, Judge.

Action by C. L. Farrell against the Atlantic Coast Line Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Legare Walker, for appellant.

E. J Dennis, for respondent.

JONES J.

In this action a magistrate court rendered judgment in favor of plaintiff against defendant for $90 as penalty for delay in the transportation of freight under the act of March 25, 1904 (24 St. at Large, pp. 671, 672). On the appeal of defendant the circuit court, Judge Memminger, reversed the judgment of the magistrate, and remanded the case for a new trial. The defendant now appeals to this court upon numerous exceptions to the rulings of the circuit court and his failure to dismiss the action.

1. It is contended that the demurrer to the complaint for insufficiency should have been sustained. The complaint after stating that defendant is a corporation under the laws of Virginia and is a common carrier owning and operating the railroad known as the Atlantic Coast Line Railroad, having its line and agents in Dorchester county, further alleged:

"Third. That on or about the 6th day of March, 1907, the plaintiff purchased and had consigned to him from the city of Charleston, in the county of Charleston, and the state aforesaid, 110 sacks of kainit, as designated upon the bill of lading, etc., the words 'Prompt shipment required' also appearing upon the said bill of lading, notice having been given that prompt shipment was desired and required to his place of business in the town of Harleyville, county of Dorchester and state aforesaid.

"Fourth. That about three weeks elapsed after the shipment before the said goods as aforesaid were located by the plaintiff, at which time it was discovered that the said goods had been negligently and carelessly taken by the defendant, its agents and servants, to Holly Hill, Berkeley county, S. C., another station on defendant's said line of railroad, and in utter disregard of the rights, etc., of the plaintiff, and in violation of the provisions of the Acts of the South Carolina Legislature of 1904, at page 671, and allowed the said goods to remain at the said station for the time and period aforesaid.

"Wherefore plaintiff demands judgment against the defendant company for the sum of ninety ($90) dollars penalty as provided for in the Acts of the Legislature of South Carolina of 1904, at page 671, and for the costs of this action."

It is charged that the complaint did not state a cause of action for failure to allege (a) that the shipment ever reached its destination and the date of its arrival; (b) the distance from the shipping point to destination; (c) the value of the shipment.

With respect to pleadings in a magistrate court, it is expressly provided in section 88, Code Proc. 1902, that "pleadings are not required to be in any particular form, but must be such as to enable a person of common understanding to know what is intended." The complaint measures up to this requirement, as it plainly shows that plaintiff is suing for the per diem penalty for delay in the transportation of freight as provided in the act of March 25, 1904. Riggs v. Wilson, 30 S.C. 175, 8 S.E. 848.

2. Appellant contends under several exceptions that the circuit court should have sustained its exceptions to the refusal of the magistrate to grant a nonsuit and should have rendered judgment of dismissal in favor of defendant because there was a total lack of testimony to show a delay in transportation penalized by the statute, but that, on the contrary, plaintiff's own testimony showed a failure to deliver freight, or a lost shipment, not within the meaning of the statute, as declared in Macon v. Southern Railway, 81 S.C. 167, 62 S.E. 6, which held that the act (24 St. at Large, p. 671) does not apply to loss of freight. In reference to this matter, Judge Memminger held as follows "Upon those grounds of the appeal which raise the question that ...