Copeland Co. v. Davis

• Decision Date: 03 September 1923
• Docket Number: 11291.
• Parties: COPELAND CO. v. DAVIS, DIRECTOR GENERAL, ET AL.
• Court: South Carolina Supreme Court

119 S.E. 19

125 S.C. 449

COPELAND CO. v. DAVIS, DIRECTOR GENERAL, ET AL.

No. 11291.

Supreme Court of South Carolina

September 3, 1923

Appeal from Richland County Court.

Action by the Copeland Company against James C. Davis, Director General, and others. Judgment for plaintiff, and defendants appeal. Reversed, and new trial ordered.

Watts J., dissenting.

Frank G. Tompkins and Barnett & McDonald, all of Columbia, and Moffett & Hyde, of Charleston, for appellants.

Edward L. Craig, of Columbia, for respondent.

COTHRAN J.

Action for $882, the value of 33 suits of clothes, alleged to have been missing out of a box said to have contained 99 suits when shipped by Arnold Leucheim Company at Philadelphia, to the plaintiff at Columbia, on January 16, 1919. The shipment appears to have been delivered for shipment to the defendant Clyde Steamship Company under a through bill of lading via Southern Railway at Charleston to Columbia.

The defendants contend that the goods were contained in a sealed box, and that the box was delivered by the railway company in the condition in which it was received by the steamship company, and offered evidence in support of that contention. The plaintiff offered evidence tending to show that, when the box was delivered at Columbia, it showed unmistakable evidence of having been broken into while in transit and a part of the contents abstracted; that the invoice called for 99 suits, and there were only 66 in the box, a shortage of 33 suits, worth $882.

It is impossible to say whether the case was tried in the common pleas court before Hon. T. J. Mauldin, circuit judge, or in the county court, before Hon. M. S. Whaley, county judge, as the record contains both statements. The reporter may upon investigation make the proper statement. The plaintiff alleged his damage at $882, and prayed for judgment for that amount. The presiding judge allowed the jury to add interest thereto, and the verdict was for $1,000.

The appeal raises two questions:

(1) Was there error in admitting in evidence an affidavit made by the shipper's packer on February 17, 1919, a month after the date of the shipment, showing the contents of the box?

(2) Was there error in allowing the plaintiff interest upon the claim of $882, the alleged value of the missing stock?

As to the first question: It was an essential part of the plaintiff's case to establish the fact that the suits claimed to have been lost in transit were actually in the box when it was delivered to the steamship company for transportation. The term usually employed, "loss and damage," applied to shipments, includes both goods received in a damaged condition and short shipments; that is where the goods delivered to the consignee are deficient in quantity. In either case the burden is first upon the consignor or consignee to show the condition or quantity of the goods when they were delivered to the first of the connecting carriers.

If the goods are delivered to the consignee in a damaged condition, the fact that they were actually received by the first carrier is manifest. The consignee, however, must show that their condition at that time was good. If the goods, or a part of them, have not in fact been delivered to the consignee, a case of deficiency in quantity, the consignee must show that they were in fact delivered to the first of the connecting carriers.

If the bill of lading should acknowledge the receipt of a definite number of specific articles, as for so many bales of cotton, horses, mules, cattle, suits of clothes, or other goods, it will doubtless constitute presumptive evidence of such delivery; but where, as in the case at bar, it acknowledges the receipt of a package, "one case clothing No. 137, contents and condition of contents of package unknown," and the consignee claims a deficiency in quantity, it is incumbent upon him to show the quantity at the time of delivery to the first connecting carrier. Upon evidence by the consignee of such condition or quantity when the goods were delivered to the first connecting carrier, and that when delivered to him they were either in a damaged condition or deficient in quantity, the presumption arises that the loss or damage occurred while in the possession of the delivering or terminal carrier. This is the rule established by the decisions of this court in the following cases: Willett v. Railroad Co., 66 S.C. 477, 45 S.E. 93; Skipper v. Railroad Co., 75 S.C. 276, 55 S.E. 454, 7 L. R. A. (N. S.) 388, 117 Am. St. Rep. 901, 9 Ann. Cas. 808; Walker v. Railroad Co., 76 S.C. 308, 56 S.E. 952; Charles v. Railroad Co., 78 S.C. 36, 58 S.E. 927, 125 Am. St. Rep. 762; Venning v. Railroad Co., 78 S.C. 42, 58 S.E. 983, 12 L. R. A. (N. S.) 1217, 125 Am. St. Rep. 768; Cooper v. Railroad Co., 78 S.C. 81, 58 S.E. 930; Lowry v. Railroad Co., 88 S.C. 311, 70 S.E. 806; Parnell v. R. Co., 91 S.C. 270, 74 S.E. 491; Eastover Co. v. Railroad Co., 99 S.C. 470, 83 S.E. 599; Railroad Co. v. Furniture Co., 237 U.S. 597, 35 S.Ct. 715, 59 L.Ed. 1137, Ann. Cas. 1916D, 333 (100 S.C. 229 note) c.; Southern Co. v. Railroad Co., 114 S.C. 141, 103 S.E. 475; People's Co. v. Railroad Co., 116 S.C. 145, 107 S.E. 146; Nimmer v. Railroad Co., 116 S.C. 190, 107 S.E. 479.

That this rule of presumption has not been affected by the Federal legislation upon the subject is conclusively settled by the recent case, in the Supreme Court of the United States, of Chicago & N.W. R. Co. v. Whitnack Co. (opinion filed April 10, 1922) 258 U.S. 369, 42 S.Ct. 328, 66 L.Ed. 665, which cites with approval the Willett and Eastover Cases, supra. The court approves the rule declared in Hutchinson on Carriers (3d Ed.) § 1348, which we quote, not only for the purpose of sustaining the presumption, but of showing the burden of proof which in the first instance rests upon the consignee:

"A connecting carrier, who has completed the transportation and delivered the goods to the consignee in a damaged condition or deficient in quantity, will be held liable in an action for the damage or deficiency, without proof that it was occasioned by his fault, unless he can show that he received them in the condition in which he has delivered them. The condition and quantity of the goods when they were delivered to the first of the connecting carriers, being shown, the presumption will arise that they continued in that condition down to the time of their delivery to the carrier completing the transportation and making the delivery to the consignee, and that the injury or loss occurred while they were in his possession."

Counsel for the plaintiff appear fully to have appreciated the burden resting upon them of proving that, when the box was delivered in Philadelphia to the steamship company for transportation, it actually contained the 33 missing suits. The question is whether or not, in carrying that burden, they were allowed to introduce evidence which should not have been admitted. The only evidence offered by the plaintiff to show that the suits claimed to have been lost were packed in the box, case 6107, and...