Jenkins v. Atlantic Coast Line R. Co.

• Decision Date: 18 October 1909
• Citation: 66 S.E. 407,84 S.C. 520
• Parties: JENKINS v. ATLANTIC COAST LINE R. CO.
• Court: South Carolina Supreme Court

66 S.E. 407

84 S.C. 520

JENKINS v. ATLANTIC COAST LINE R. CO.

Supreme Court of South Carolina

October 18, 1909

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

Action by R. M. Jenkins against the Atlantic Coast Line Railroad Company. Judgment for plaintiff, and defendant appeals Affirmed.

Mark Reynolds, for appellant. Lee & Morse, for respondent.

JONES C.J.

In this case a magistrate of Sumter county gave judgment against defendant for $50, the value of a package containing 1,500 cigars, lost while in defendant's possession, and 25 cents freight paid on said package, together with interest aggregating $53.15. The circuit court affirmed this judgment.

The testimony tends to show that on October 20, 1906, defendant received from Finkin-Jordan Company, Charleston, S. C., a package weighing 30 pounds, consigned to R. M. Jenkins, St Charles, S. C., and described in the bill of lading as "1 c/s tobacco" and in the waybill as smoking tobacco. The freight on 30 pounds of tobacco, or smoking tobacco, or cigars strapped, corded, and sealed, from Charleston, S. C., the place of shipment, to St. Charles, in Lee county, the place of destination, was 25 cents; that the freight charge on a 30-pound package of cigars not corded and sealed was 50 cents, as in this case; that, before payment of the freight at the point of destination plaintiff inquired for "a shipment of cigars," and that the agent collected 25 cents as freight, as the shipment was billed as tobacco; that plaintiff did not know that the freight on the package should be greater than 25 cents at the time of the shipment or payment of freight; that the shipment was never delivered or accounted for in any way; that the value of the cigars was $50, but the value of 30 pounds of smoking tobacco such as sold at St. Charles market was about $19.20.

Appellant alleges error in sustaining the refusal of the magistrate to charge the following request: "If the jury believe that the tariff rate of the defendant for freight charges on tobacco between Charleston and St. Charles was $.25, and the rate of freight on the package of cigars as alleged, weighing 30 pounds, was $.50, then, if the plaintiff paid only half the amount of freight due on 30 pounds of cigars--if you believe the package weighed 30 pounds--cannot recover the $50.25, as the amount of the claim of the shipment in this case." The request was properly refused. If plaintiff was guilty of no fraud or deception, or negligence, which misled defendant into accepting a shipment for less freight than it was entitled to receive, plaintiff had the right to recover the value of the actual articles lost with freight paid, and, in any event, plaintiff was entitled to recover the value (not exceeding amount demanded) of 30 pounds of tobacco reasonably falling within the description "1 c/s tobacco." Bottum v. Railway, 72 S.C. 378, 51 S.E. 985, 2 L. R. A. (N. S.) 773, 110 Am. St. Rep. 610. It was for the jury to determine whether defendant had been misled to its injury by the fraud or negligence of plaintiff or his agents.

The magistrate was requested to charge the jury: "If you believe that the package alleged to contain cigars was billed as tobacco, and was undertaken to be transported by the defendant as tobacco, and same was lost, the jury can only give a verdict for what they find the worth of a package of tobacco of that size and weight is, together with $.25 paid thereon;" and he modified the request by instructing the jury that tobacco is a general term, and it was for the jury to say what was shipped and what should have been the billing. The request was faulty for reasons already stated. The modification was in harmony with the principle recognized in Bottum v. Railway, supra, in this language "It is quite true that, when a railroad company receives a package marked 'Glass' and makes no inquiry as to its kind or value, it is responsible for any article received coming under the general description of glass." The magistrate was further requested to charge: "That if the defendant company was misled by billing the shipment 'smoking' tobacco, and less care was taken of same by reason of the fact that smoking tobacco was of much less value, if you so find, and that the plaintiff thereby got a less rate of freight by having the shipment billed as smoking tobacco, then I charge you that he cannot take advantage of his own wrong and mistake, and he can only recover the value of what you believe the best smoking tobacco, weighing 30 pounds, is, and the freight paid by him, and he...