Holliday Co. v. Raleigh & C.R. Co.
| Decision Date | 21 March 1912 |
| Citation | 74 S.E. 41,91 S.C. 51 |
| Parties | HOLLIDAY CO. v. RALEIGH & C. R. CO. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Marion County; S.W. G Shipp, Judge.
"To be officially reported."
Action by the Holliday Company against the Raleigh & Charleston Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.
M. C Woods, for appellant. Jas. W. Johnson, for respondent.
This is an action for damages to stock.
The plaintiff alleges "that on or about the 12th day of December, A. D. 1906, the plaintiff delivered, or caused to be delivered, to the defendant, through its agent and connecting line, the Atchison, Topeka & Santa Fé Railway Company, at Blackwell, in the now state of Oklahoma, and the defendant received, twenty-nine (29) horses and mules, the property of the plaintiff, which the defendant as a common carrier as aforesaid promised and agreed, in consideration of a reasonable compensation paid, or to be paid it, safely and promptly to carry to Marion, in the county of Marion, and state of South Carolina, and there to deliver the same to the plaintiff." By the fifth paragraph of the complaint the plaintiff alleges "that defendant did not safely and promptly carry and deliver said mules and horses pursuant to said agreement, but, on the contrary. kept said animals on the road for a much longer time than was necessary, and negligently exposed them to the cold and freezing weather and otherwise neglected them, and as a direct result thereof all of said animals were made sick, and seven of them died almost immediately after they were delivered to plaintiff; that six of said animals died within less than twenty-four hours after the defendant delivered them, and one soon thereafter, and the remainder were greatly damaged from the causes aforesaid." In the seventh paragraph the plaintiff alleges: "That on the 8th day of March, 1907, plaintiff filed with the defendant's agent at Marion, S. C., a claim made out in detail showing said loss, but the defendant has never adjusted nor paid the same, nor any part thereof, nor has the defendant traced said shipment and informed plaintiff when, where, and by which carrier the said animals were damaged and destroyed, and plaintiff alleges that defendant is responsible for said loss and damage to the extent of $100 on each animal, the bill of lading limiting defendant's liability on each animal to $100," and claims judgment for $1,413.
After the pleadings were made up, the plaintiff gave notice of motion to amend the complaint, and served with the notice a copy of the complaint as he would have it amended. This new complaint had two causes of action, setting out the same injury to the stock and negligence, but the seventh paragraph of the complaint was omitted in the first cause of action, and plaintiff sought to allege that defendant itself had damaged the stock.
Under the second cause of action, the plaintiff set up that in addition to the claim filed on the 8th day of March, 1907, the plaintiff had on the 25th day of April, 1907, filed with the defendant an additional statement, and that the defendant had not traced the damage, and was therefore responsible. The motion was heard by Judge Shipp, and an order granted allowing the complaint amended, as moved for. The defendant appealed on the following exceptions:
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