Wichman v. Atlantic Coast Line R. Co.
| Decision Date | 01 March 1915 |
| Docket Number | 9018. |
| Parties | WICHMAN v. ATLANTIC COAST LINE R. CO. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Colleton County; R. W Memminger, Judge.
Action by R. H. Wichman, doing business under the trade-name of A Wichman & Son, against the Atlantic Coast Line Railroad Company. Judgment for defendant, and plaintiff appeals. Modified.
Padgett & Moorer, of Walterboro, for appellant.
Peurifoy Bros., of Walterboro, for respondent.
This was an action brought by the plaintiff against the defendant in the magistrate's court for the sum of $23.73 for an alleged overcharge of freight on a shipment of one hearse and fixtures from Sterling, Ill., to Walterboro, S. C., and for penalty fixed by statute for failure to pay claim within 40 days. The magistrate gave judgment in favor of plaintiff for full amount sued for. Defendant appealed to circuit court and the circuit judge, Memminger, sustained the appeal, granted a new trial, and remanded the case to the magistrate's court on the ground that it was error to exclude the testimony of witness R. H. Wichman as to what it would have cost plaintiff to bring property by private conveyance to Walterboro, S. C., from Charleston, S. C., as the defendant would have been entitled to the benefit of that cost in having judgment rendered against it by the magistrate, and it was remanded, with instructions to take testimony on this issue and determine the same, and to deduct this amount from amount of plaintiff's claim for overcharge in freight and to render a judgment accordingly, and not allowing the penalty after deducing costs. From this order both plaintiff and defendant appeal.
The plaintiff by three exceptions alleges error on the part of his honor in remanding the case on the grounds he did and for the purpose indicated, and in deciding, as he did, what should be deducted from plaintiff's claim, and in disallowing the penalty. The evidence in the case develops the facts that on November 9, 1912, the Rock Falls Manufacturing Company at Sterling, Ill., delivered to Chicago, Burlington & Quincy Railroad a hearse and component parts consigned to Rock Falls Manufacturing Company at Charleston, S. C., with directions to notify A. Wichman & Son, Walterboro, S.C. The shipment came in a solid car, the marks on different packages were: "Rock Falls Mfg. Co. Charleston, S. C.; notify A. Wichman & Son, Walterboro, S. C." The bill of lading with draft attached made on the plaintiff by shipper was forwarded to National Bank at Walterboro, and the plaintiff paid the draft and received the bill of lading. Plaintiff had directed that the shipment be made to them at Charleston, S. C., and at no time directed the shipper or railroad to ship to Walterboro. Instead of the hearse being delivered to the plaintiff at Charleston, where they had directed it to be shipped and as the place designated in the bill of lading, it was brought to Walterboro by the defendant without direction or consent of the plaintiff. Defendant made demand on plaintiff for $86.13, freight charges on the shipment from Sterling, Ill., to Walterboro, S. C., which was $23.73 more than proper freight charges from Sterling, Ill., to Charleston, S. C., and refused to deliver the shipment to plaintiff until full charges demanded were paid. The plaintiff offered to pay freight charges from Sterling, Ill., to Charleston, but declined to pay charges from Charleston to Walterboro. The defendant refused this offer, and in order to get the property plaintiff paid the full amount demanded under protest, and filed his claim with the defendant for the excess claimed, $23.73. This claim was filed on the day the freight was paid under protest, and was not paid in 40 days. Before plaintiff paid freight charges under protest he told defendant they could reship the hearse back to Charleston, where he had ordered it shipped in the first instance, and he would receive it there. The evidence shows that the freight came into...
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