Cousar Mercantile Co. v. Southern Ry. Co.

• Decision Date: 09 April 1909
• Citation: 64 S.E. 391,82 S.C. 307
• Parties: COUSAR MERCANTILE CO. v. SOUTHERN RY. CO.
• Court: South Carolina Supreme Court

64 S.E. 391

82 S.C. 307

COUSAR MERCANTILE CO. v. SOUTHERN RY. CO.

Supreme Court of South Carolina

April 9, 1909

Appeal from Common Pleas Circuit Court of Chester County; John S Wilson, Judge.

Action by the Cousar Mercantile Company against the Southern Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.

Abney & Miller and J. E. McDonald, for appellant.

A. L Gaston, for respondent.

JONES J.

The plaintiff recovered judgment against defendant for $80.84 for the value of a shipment of freight alleged to have been lost and $50 penalty for failure to adjust the claim filed for said loss within 90 days. It appeared that the freight was delivered to the defendant at South Boston, Va., on December 12, 1906, for delivery to the plaintiff, consignee, at Chester, S.C. The goods not having arrived by January 2, 1907, plaintiff on that day filed its claim as for lost goods valued at $80.84. There was some evidence that such a delay was unusual and unreasonable. The plaintiff's testimony was to the effect that notice of the arrival of the goods at Chester, S. C., was given plaintiff on February 19, 1907, and that plaintiff declined to receive the goods at full value; the goods being heavy winter dry goods. There was no evidence that the goods had been damaged in any way. The packages were not broken. The goods were not examined. John G. Cousar, secretary and treasurer of the plaintiff corporation, testified that plaintiff was liable for the price of the goods, and was "aggrieved" by the nondelivery of the goods $80.84, their value. A motion for non-suit was made on the grounds (1) that no case under the statute had been made out; (2) that it appears from the undisputed testimony that the claim was filed for the loss of the goods, and that the goods were not lost, and that recovery for the penalty can be had only in case of loss of or damage to freight; (3) that the testimony shows that plaintiff as consignee has not been injured or aggrieved. The motion was overruled, and defendant excepts.

The terms of the penalty statute material to the issue are "Sec. 2. That every claim for loss of or for damage to property while in possession of such common carrier shall be adjusted and paid within forty days, in case of shipments wholly within this state, and within ninety days, in case of shipments from without this state, after the filing of such claim with the agent of such carrier at the point of destination of such shipment: Provided, that no such claim shall be filed until after the arrival of the shipment, or of some part thereof, at the point of destination, or until after the lapse of a reasonable time for the arrival thereof. In every case such common carrier shall be liable for the amount of such loss or damage, together with interest thereon from the date of the filing of the claim therefor, until the payment thereof. Failure to adjust and pay such claim within the periods respectively herein prescribed shall subject each common carrier so failing to a penalty of fifty dollars for each and every such failure, to be recovered by any consignee or consignees aggrieved in any court of competent jurisdiction: Provided, that unless such consignee or consignees recover in such action the full amount claimed, no penalty shall be recovered, but only the actual amount of the loss or damage with interest as aforesaid. ***" In order to recover under this statute, plaintiff must show loss of, or damage to, the specific freight as distinguished from damage to plaintiff in consequence of delay in its transportation. For...