Mills v. Southern Ry. Co., Carolina Division

• Decision Date: 20 February 1912
• Citation: 73 S.E. 772,90 S.C. 366
• Parties: MILLS v. SOUTHERN RY. CO., CAROLINA DIVISION.
• Court: South Carolina Supreme Court

73 S.E. 772

90 S.C. 366

MILLS v. SOUTHERN RY. CO., CAROLINA DIVISION.

Supreme Court of South Carolina

February 20, 1912

Appeal from Common Pleas Circuit Court of Aiken County.

Action by Julius Mills against the Southern Railway Company Carolina Division. From an order of the circuit court dismissing defendant's appeal from a judgment for plaintiff in magistrate's court, defendant appeals. Affirmed.

The third exception was as follows:

"(3) It is submitted that his honor, the presiding judge, erred in not sustaining the defendant's third exception, which was as follows, for the reason therein stated: 'That his honor erred in admitting in evidence the alleged bill of lading without having the same properly proven by the party who issued the same in St. Louis Mo."' Hendersons, for appellant. Claude E. Sawyer, for respondent.

GARY C.J.

This action was commenced in a magistrate's court, and is for damages alleged to have been sustained by the plaintiff through the wrongful acts of the defendant.

The allegations of the complaint are as follows: "That the plaintiff is, by trade, a barber, and desiring to engage in his trade at Langley he rented a house at a rental of $5 per month, and announced to the public that he would open a place of business, commonly called a 'barber shop,' on or about the 1st day of April, 1906, and for that purpose he purchased an outfit for his shop, consisting of chairs and mirrors, which was delivered to the defendant by the August Kern Barber Supply Company, in the city of St. Louis, in the state of Missouri, on the 24th day of March, 1906, and reached Langley on the 3d day of April, 1906, and the defendant, through its agents and servants, willfully, maliciously, wantonly, negligently, and in utter disregard and violation of the plaintiff's rights, failed and refused to deliver the said articles to the plaintiff, without any reason whatever, for a long space of time, in consequence of which failure to get possession of his aforesaid appliances he was unable to open his barber shop and engage in his business, and his landlord, the Langley Manufacturing Company, in consequence of such long delay, has rented and let the barber shop to another party, and thus deprived this plaintiff of carrying on his business, because there is no other suitable house which can be obtained in that locality; and plaintiff further alleges that that particular place is the best and most desirable stand for the barber business in the village of Langley, averaging an income of $15 a week with one chair; by reason of all of which willful, wanton, malicious, and negligent conduct of the defendant this plaintiff has been greatly damaged in the sum of $100."

The defendant denied generally the allegations of the complaint. The magistrate rendered judgment in favor of the plaintiff for $100, whereupon the defendant appealed to the circuit court; but the appeal was dismissed, and the defendant again appealed upon exceptions which will be reported.

Section 368 of the Code provides that, upon hearing an appeal from an inferior court, the circuit court shall "give judgment according to the justice of the case, without regard to technical errors, which do not affect the merits." Therefore those exceptions assigning errors that are merely technical and do not affect the merits will be disregarded. We proceed to the consideration of the exceptions, in the light of this provision.

First exception:

The following statement appears in the record: "Defendant's counsel objects to any testimony as to what the plaintiff thinks, believes, or calculates that he could have made in his business as barber during the alleged delay in the delivery of the freight in question, on the grounds that the same are both special and speculative damages, and hence inadmissible." Special damages are recoverable when the carrier receives notice at the time of the shipment that the loss of the property or delay in its delivery will result in such damages. The testimony was in response to the allegations of the complaint; and while the magistrate might have objected to proof of such damages, unless it appeared that the carrier had notice thereof at the time of shipment, the appellant had no such right. Martin v. Railway, 70 S.C. 8, 48 S.E. 616. Furthermore, the objection to the testimony was not based upon the ground that the carrier did not receive notice of such damages at the time the goods were shipped.

Second exception:

In the first place, there was other testimony of the witness Knox, to which there was no objection; and, in the second place, the testimony was in response to the allegations of the complaint.

Third exception:

In the first place, this ground of objection is too technical, as the question arose in a magistrate's court; and, in the second place, the appellant has failed to show that there was prejudicial error.

The next question that will be considered is whether there was any testimony tending to show that the plaintiff was entitled to punitive damages .

The plaintiff testified as follows: "When I found that my goods were in the depot, I went to see about them, and the agent would not let me have them; said he did not have any freight bill. The agent (Mr. Gaillard) told me just a day or two before I got the goods that I could have the goods if I would give him $10 to hold. I did not give it to him; he wanted it to hold; did not...