Mills v. Southern Ry. Co.

• Decision Date: 09 April 1909
• Citation: 64 S.E. 238,82 S.C. 242
• Parties: MILLS v. SOUTHERN RY. CO.
• Court: South Carolina Supreme Court

64 S.E. 238

82 S.C. 242

MILLS v. SOUTHERN RY. CO.

Supreme Court of South Carolina

April 9, 1909

Appeal from Common Pleas Circuit Court of Chester County; John S Wilson, Judge.

Action by Patience A. Mills against the Southern Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Abney & Miller and J. E. McDonald, for appellant.

A. L Gaston, for respondent.

WOODS J.

The complaint in this action alleges a delay of 13 days in the transportation of a car load of lumber from Westville, in Kershaw county, a station on defendant's railroad, to Smith's in York county, another station on defendant's railroad, not over 100 miles distant. Judgment was demanded on account of this delay for $65 as the amount of the statutory penalty at $5 a day for 13 days, and for $200 special damages. At the trial plaintiff's counsel conceded that there was no evidence warranting the recovery of special damages, and the jury found a verdict for $50 for the statutory penalty of $5 a day for 10 days. The appeal involves the construction of these portions of the penalty act of March 26, 1904 (24 St. at Large, p. 671):

"Section 1. Be it enacted by the General Assembly of the state of South Carolina, that from and after May 1st, 1904, all railroad companies doing business in this state shall transport to its destination all freight received by them for transportation within this state within a reasonable time after receipt thereof, not exceeding the following times after midnight of the day of the receipt thereof, to wit: Between points not over one hundred miles apart, seventy-two hours: *** Provided, that notice be given to the receiving company that prompt shipment of such freight is required, and when requested, such company shall insert in the bill of lading the words, 'Prompt shipment required,' which shall be conclusive evidence of such notice, and each such company shall extend such notice to its connecting line or be liable for the consequences of its failure to do so.

"Sec. 2. That any such company failing to comply with the provisions of this act, except for good and sufficient cause, the burden of proof of which shall be on the company so failing, shall be subject in addition to the liabilities and remedies now existing for unreasonable delay in the transportation of freight, to a penalty of five dollars per day for every day of delay in excess of the time hereinbefore limited, to be recovered by any consignee who may be injured in any way by such delay, or by the owner or holder of the bill of lading, in any court of competent jurisdiction. ***"

The bill of lading shows the shipment of a car of lumber by Stevens Lumber Company at Westville, consigned to Stevens Lumber Company at Smith's. But the bill of lading was indorsed in blank by Stevens Lumber Company, and there was testimony that the lumber was ordered from Stevens Lumber Company by R. G. Mills as the agent for his mother, Patience A. Mills, and that the bill of lading indorsed in blank was turned over to Mills for his mother.

By the terms of the statute, the penalty for delay does not attach unless there is notice that prompt shipment is required; and the main...