J.S. Pinkussohn Cigar Co. v. Clyde S.S. Co.

• Decision Date: 12 August 1915
• Docket Number: 9154.
• Citation: 85 S.E. 1060,101 S.C. 429
• Parties: J. S. PINKUSSOHN CIGAR CO. v. CLYDE S. S. CO.
• Court: South Carolina Supreme Court

85 S.E. 1060

101 S.C. 429

J. S. PINKUSSOHN CIGAR CO. v. CLYDE S. S. CO.

No. 9154.

Supreme Court of South Carolina

August 12, 1915

Appeal from Common Pleas Circuit Court of Charleston County; H. F Rice, Judge.

Action by the J. S. Pinkussohn Cigar Company against the Clyde Steamship Company, begun in the civil and criminal court of Charleston and appealed by defendant to the circuit court. From a judgment there for plaintiff, defendant again appeals. Affirmed on condition of remittitur.

Bryan & Bryan, of Charleston, for appellant.

Nathans & Sinkler, of Charleston, for respondent.

HYDRICK J.

Plaintiff recovered judgment in the civil and criminal court of Charleston for $194.21 damages done to a shipment from Jacksonville, Fla., to Charleston, S. C., and $50, the penalty prescribed by statute for failure to pay the claim within the time therein specified. This judgment was affirmed on appeal to the circuit court, and defendant appealed to this court. The shipment consisted of a soda fountain and its parts, among which were several crates of marble.

The jury in the trial court found that the damage occurred while the goods were in defendant's possession. It is needless to say that we have no jurisdiction to review the findings of fact, unless they are wholly unsustained by evidence.

It would serve no useful purpose to state the testimony in detail, or to discuss the tendencies of the evidence. It is sufficient to say that there was evidence tending to prove that the goods were delivered to defendant at Jacksonville in good order, except that a piece was broken out of the back of the fountain, which was noted on the bill of lading, and that, when they were delivered to plaintiff, at Charleston four pieces of marble, besides the one noted on the bill of lading, were broken, and that the damage amounted to $194.21.

The contention that the drayman who received the goods from defendant and hauled them to plaintiff's place of business was a common carrier, and therefore, under our decisions, the presumption arose--which, according to the contention, was not rebutted--that the damage was done by him (the last carrier), cannot help the defendant; because, in that view, defendant was the initial carrier and, this being an interstate shipment, defendant would be liable to plaintiff, under the Carmack amendment of the act to regulate interstate commerce. But we do not concede that either branch of the contention is correct. However, the fact that the goods were not damaged before they were received by defendant, or after they were delivered to the drayman, was found against defendant, and, as we have said, there is evidence to sustain the finding.

In disposing of one of the issues of fact, the circuit court said:

"Now, whether these pieces were broken while in the hands of the defendant or by the careless handling in removal from the wharf to plaintiff's place of business does not clearly appear. However, as these matters were left for the jury to determine, and as both they and the judge of the said court are much better acquainted with the conditions existing and surrounding the transaction than I am, I cannot hold that there is any reversible error in the verdict."

We do not agree with appellant that the court erred in giving due consideration to the findings of the trial court, and in not deciding the questions of fact anew from the evidence, as if there had been no findings thereon in the trial court. Appeals from the civil and criminal court of Charleston to the circuit court are heard upon the record sent up,...