McGrath v. Charleston & W.C. Ry. Co.

• Decision Date: 12 June 1912
• Parties: McGRATH et al. v. CHARLESTON & W. C. RY. CO. [D1]
• Court: South Carolina Supreme Court

75 S.E. 44

91 S.C. 552

McGRATH et al. v. CHARLESTON & W. C. RY. CO. ^[D1]

Supreme Court of South Carolina

June 12, 1912

Appeal from Common Pleas Circuit Court of Abbeville County; R. C Watts, Judge.

"To be officially reported."

Action by J. F. McGrath and another, partners doing business as McGrath Bros., against the Charleston & Western Carolina Railway Company. Judgment for plaintiffs. Defendant appeals. Affirmed.

W. P Greene, of Abbeville, for appellant. Wm. N. Graydon, of Abbeville, for respondents.

WOODS J.

The plaintiffs, blacksmiths and wheelwrights at McCormick, S. C purchased in Savannah, Ga., two lengths of steel shafting and other hardware. The goods were shipped over the defendant's railroad, and, on arrival at McCormick, the shafting was found to be so bent as to be unfit for the use intended. The plaintiffs refused to receive the shafting from the carrier, and duly presented their claim for $7.15, the entire value of the two pieces, and $.77 freight. The defendant having failed to pay the claim, this action was brought in the magistrate's court for $7.90 and $50, the statutory penalty.

The only witness in the case was J. T. McGrath, one of the plaintiffs, who testified that the bent shafting was of no use to the plaintiffs, but that it was worth 25 to 35 cents a hundred pounds as old iron.

Defendant's counsel asked the magistrate to instruct the jury to find a verdict for the plaintiff for the amount of the claim, $7.90 less 25 cents a hundred pounds, the value of the shafting as old iron. This request was refused, and defendant then requested the following charge: "That, because property is damaged in shipment, a person cannot abandon it as long as it has a value, but must receive the same, and, if he cannot use it, must sell for its market value at the nearest market, and the amount it brings or would bring must be deducted from the value or the cost of the article in estimating the damage." The magistrate refused this and other similar requests, and charged the jury "that, if the jury find that the shafting was of no value to the plaintiff, he had a right to refuse to accept it and sue for the value." The jury found a verdict for $57.92, the whole amount of the claim and the statutory penalty; and, on appeal, the judgment of the magistrate's court on the verdict was affirmed by the circuit court. We think the legal proposition relied on by defendant's counsel is sound and well established by authority in this state and elsewhere. A carrier having goods in possession for transportation acquires no title to them. As the goods remain the property of the owner, his right of action against the carrier is for the entire value of the goods if lost or made entirely worthless by the carrier's default; and, in case of destruction of value, the recovery is not affected by the owner's acceptance or his refusal to accept the goods. On the other hand, if the value is merely impaired by actual injury in the hands of the carrier, or by delay in the carrier, the consignee is bound to receive the goods; and his right of action is limited to the impairment of value due to delay in carriage or injury to the goods. In Nettles v. S.C. R. R. Co., 7 Rich. 190, 62 Am. Dec. 409, the action was for the value of a shipment of wool hats which were much injured by being boxed up for several months, when they should have been transported and delivered in a few days. The court held: "The goods, even after great delay in the carriage of them, belonged to the plaintiff. When they were tendered to him, he should have accepted them; and thereby the extreme measure of damages would have been reduced by deduction therefrom of the value of the goods, according to their condition at the time and place of tender." It will be observed that the point involved in that case was not loss resulting from mere delay in delivery, but from actual injury to the goods received in the course of transportation. Indeed, on the point under discussion, it is impossible to distinguish in principle between damage due to delay and damage due to impairment of value by physical injury to the goods. Neither the actual injury nor the delay in transportation amounts to conversion as long as the goods retain a substantial value.

The rule was applied to delayed freight in Cousar v. So. Ry., 82 S.C. 307, 64 S.E. 391, and in Bullock v. C. & W. C. Ry., 82 S.C. 375, 64 S.E. 234. In Shaw v. S.C. R. R. Co., 5 Rich. 462, 57 Am. Dec 768, a considerable quantity of a shipment of molasses had leaked out because of injury to the casks in the course of transportation. The court, holding that the consignee must receive the molasses that was left and sue for the value of...