71 S.E. 989 (S.C. 1911), Smith v. Southern Ry. Co.

Citation:71 S.E. 989, 89 S.C. 415
Opinion Judge:HYDRICK, J.
Party Name:SMITH v. SOUTHERN RY. CO.
Attorney:Frank B. Gary, for appellant. Wm. N. Graydon, for respondent.
Case Date:July 31, 1911
Court:Supreme Court of South Carolina

Page 989

71 S.E. 989 (S.C. 1911)

89 S.C. 415

SMITH

v.

SOUTHERN RY. CO.

Supreme Court of South Carolina

July 31, 1911

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

"To be officially reported."

Action by Enoch Smith against the Southern Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

Frank B. Gary, for appellant. Wm. N. Graydon, for respondent.

HYDRICK, J.

[89 S.C. 417] On January 28, 1909, M. A. Butler shipped a car load of hogs from Morrison, Tenn., to plaintiff at Columbia, S.C. The car passed over the lines of four connecting carriers, defendant being the last. The receiving carrier, the Nashville, Chattanooga

Page 990

& St. Louis Railway, issued a bill of lading, receipting for 157 hogs. When the car arrived at destination, it contained only 127 hogs. Plaintiff filed a claim with defendant for $150, for the loss of 30 hogs at $5 each, the value stipulated in the bill of lading, in case of loss. Defendant failing to pay the claim, this action was brought to recover the amount, together with $50, the statutory penalty for failure to pay the claim within the time prescribed by the statute.

Having received and delivered part of the shipment, the presumption arose that defendant received the entire shipment. Walker v. Railway, 76 S.C. 308, 56 S.E. 952; Bradley v. Railroad Co., 77 S.C. 317, 57 S.E. 1101. But the presumption may be rebutted. Bradley v. Railway, supra; McMeekin v. Railway, 85 S.C. 381, 67 S.E. 745. Defendant undertook to rebut it, and discharge itself from liability by proving that the car contained only 127 hogs, when received by it, and introduced testimony tending to prove that fact. Plaintiff contended that defendant was estopped to deny the recital in the bill of lading that the car contained 157 hogs.

Over defendant's objection, plaintiff was allowed to testify that, in reliance upon the bill of lading, he paid a draft made on him by Butler for 157 hogs. The contention that this evidence was incompetent, because the draft was the best evidence, cannot be sustained. The contents of the draft were not involved in the testimony. The mention of the draft was merely incidental, as showing the method of payment. But it was competent for plaintiff to say that he paid for 157 hogs, without reference to the mode of payment. Besides, parol evidence of a writing which is only collateral to the issue is admissible. Elrod v. Cochran, 59 S.C. 467, 38 S.E. 122.

The other ground of objection that [89 S.C. 418] the evidence was irrelevant is also untenable. It was relevant upon the issue of estoppel.

If defendant had issued the bill of lading, it would have been estopped to deny that the car...

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12 practice notes
  • 221 P. 130 (Idaho 1923), Boise Payette Lumber Co. v. Sarret
    • United States
    • Idaho Supreme Court of Idaho
    • November 14, 1923
    ...195; Smith v. Ferrario, 113 Ga. 872, 39 S.E. 428; Gardner v. Northwestern Mfg. Co., 52 Ill. 367; Smith v. Southern R. Co., 89 S.C. 415, 71 S.E. 989; 20 R. C. L. 848; Vanderhurst v. DeWitt, 95 Cal. 57, 30 P. 94, 20 L. R. A. 595; Lewin v. Barry, 15 Colo. App. 461, 63 P. 121; Union Nat. Bank v......
  • 524 F.Supp. 1235 (D.Del. 1981), Civ. A. 81-453, United Parcel Service, Inc. v. United States Postal Service
    • United States
    • Federal Cases United States District Courts 3th Circuit District of Delaware
    • October 29, 1981
    ...his complaint because the statute precluded pre-induction review of draft classifications; the court of appeals affirmed. Id. at 234-35, 89 S.Ct. at 415. The Supreme Court reversed and remanded the case to the district court, holding that the court had jurisdiction to review the challenge. ......
  • 73 S.E. 1020 (S.C. 1912), Hardaway v. Southern Ry. Co.
    • United States
    • South Carolina Supreme Court of South Carolina
    • March 2, 1912
    ...have been bound even under the common law by the rate quoted the plaintiff by the initial carrier. Smith v. Southern Ry. Co., 89 S.C. 415, 71 S.E. 989. But there was no contention as to the correctness of the rate quoted on lumber or the rate collected on a contractor's outfit. The issue wa......
  • 827 F.Supp. 1409 (E.D.Ark. 1993), LR-C-91-529, Brumley v. United States Dept. of Labor
    • United States
    • Federal Cases United States District Courts 8th Circuit Eastern District of Arkansas
    • August 3, 1993
    ...preparing for the ministry ... shall be exempt from training and service ... under this title." Oestereich, 393 U.S. at 235, 89 S.Ct. at 415, quoting Section 6(g) of the Selective Service Act. In both of those cases one can easily appreciate how clear-cut the language at issue Plaintif......
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12 cases
  • 221 P. 130 (Idaho 1923), Boise Payette Lumber Co. v. Sarret
    • United States
    • Idaho Supreme Court of Idaho
    • November 14, 1923
    ...195; Smith v. Ferrario, 113 Ga. 872, 39 S.E. 428; Gardner v. Northwestern Mfg. Co., 52 Ill. 367; Smith v. Southern R. Co., 89 S.C. 415, 71 S.E. 989; 20 R. C. L. 848; Vanderhurst v. DeWitt, 95 Cal. 57, 30 P. 94, 20 L. R. A. 595; Lewin v. Barry, 15 Colo. App. 461, 63 P. 121; Union Nat. Bank v......
  • 524 F.Supp. 1235 (D.Del. 1981), Civ. A. 81-453, United Parcel Service, Inc. v. United States Postal Service
    • United States
    • Federal Cases United States District Courts 3th Circuit District of Delaware
    • October 29, 1981
    ...his complaint because the statute precluded pre-induction review of draft classifications; the court of appeals affirmed. Id. at 234-35, 89 S.Ct. at 415. The Supreme Court reversed and remanded the case to the district court, holding that the court had jurisdiction to review the challenge. ......
  • 73 S.E. 1020 (S.C. 1912), Hardaway v. Southern Ry. Co.
    • United States
    • South Carolina Supreme Court of South Carolina
    • March 2, 1912
    ...have been bound even under the common law by the rate quoted the plaintiff by the initial carrier. Smith v. Southern Ry. Co., 89 S.C. 415, 71 S.E. 989. But there was no contention as to the correctness of the rate quoted on lumber or the rate collected on a contractor's outfit. The issue wa......
  • 827 F.Supp. 1409 (E.D.Ark. 1993), LR-C-91-529, Brumley v. United States Dept. of Labor
    • United States
    • Federal Cases United States District Courts 8th Circuit Eastern District of Arkansas
    • August 3, 1993
    ...preparing for the ministry ... shall be exempt from training and service ... under this title." Oestereich, 393 U.S. at 235, 89 S.Ct. at 415, quoting Section 6(g) of the Selective Service Act. In both of those cases one can easily appreciate how clear-cut the language at issue Plaintif......
  • Free signup to view additional results