Bagnal v. Southern Express Co, (No. 9614.)

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: GARY
• Citation: 91 S.E. 334
• Parties: BAGNAL v. SOUTHERN EXPRESS CO.
• Decision Date: 10 February 1917
• Docket Number: (No. 9614.)

91 S.E. 334
(106 S.C. 395)

BAGNAL
v.
SOUTHERN EXPRESS CO.

(No. 9614.)

Supreme Court of South Carolina.

Feb. 10, 1917.

Appeal from Common Pleas Circuit Court, Sumter County; S. W. G. Shipp, Judge.

Action by J. M. Bagnal against the Southern Express Company. Judgment for plaintiff in the magistrate's court, which was affirmed on appeal by the circuit court, and defendant appeals. Affirmed.

The defendant's exceptions here follow: His honor, the circuit judge, erred, it is respectfully submitted:

(1) In not reversing the said magistrate who charged that the provisions of sections 2598 and 2599 of volume 1 of the Code of 1912, which he referred to as "the warehouseman law, " was the law of this case, without qualification, and stated to the jury immediately after so charging, "It is for you to say whether or not the Southern Express Company absolved itself of liability." For this charge led the jury to believe that unless the defendant made or attempted to make a sale of the goods, as set forth in the aforesaid sections of the Code, it would be absolutely liable for the destruction of the goods, even if this was due to their decaying before they could be delivered, and in the absence of any fault or negligence of its own. Whereas, sections 2598 and 2599 of Volume 1 of the Code are not only by their express terms applicable only to public warehousemen and also shown by their wording to be clearly permissive and not mandatory, but are clearly repealed, in so far as they could apply to common carriers—if they were ever intended to apply to them—by No. 88 of the Statutes at Large of 1918, which makes it clearly permissible and not mandatory for the carrier to sell uncalled for, perishable goods, and which could not possibly be interrupted as forcing the carrier to go through the form of attempting to sell a box of rotten peaches in order to shield itself from absolute liability for their destruction. This statute was in full force at the time that the goods sued for in this action were received by the Southern Express Company.

(2) In not reversing the said magistrate who modified the defendant's first request to charge, which charge was as follows: "If the jury believes from the evidence that this shipment was transported to the defendant's warehouse,

[91 S.E. 335]

in safety, at Sumter, S. C, and the defendant made reasonable efforts to ascertain the particular residence of the plaintiff and the consignee could not be found, and by reason of such nondelivery the goods perished, being fruit that was perishable, then I charge you that the plaintiff cannot recover in this case." North Penn. R. Co. v. Commercial Bank of Chicago, 123 U. S. 727, 8 Sup. Ct. 266, 31 L. Ed. 287; 7 A. and E. Ency. of Law, p. 545; W. H. Baker v. W. U. Tel. Co., 87 S. C. 174, 69 S. E. 151. The modification being as follows: "And they followed the statute." Whereas, the request stated a sound proposition of law applicable to the facts of the case, and it was clearly error to limit its application by adding a charge as to a statute which, as pointed out in the first exception, could have no application at all to this ease and certainly no such effect as the magistrate's charge would have given it.

(3) In not reversing the said magistrate, who refused to charge the defendant's sixth request to charge, which was as follows: "I charge you it was not incumbent on the defendant to go through a form of sale, if when defendant's agent opened the box the contents were decayed or worthless if you believe he did open the box and found such condition."...