Daughty v. Northwestern R. Co. of South Carolina

• Decision Date: 02 September 1912
• Citation: 75 S.E. 553,92 S.C. 361
• Parties: DAUGHTY v. NORTHWESTERN R. CO. OF SOUTH CAROLINA.
• Court: South Carolina Supreme Court

75 S.E. 553

92 S.C. 361

DAUGHTY v. NORTHWESTERN R. CO. OF SOUTH CAROLINA.

Supreme Court of South Carolina

September 2, 1912

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

"To be officially reported."

Action by Ferdinand Daughty against the Northwestern Railroad Company of South Carolina. An order of a magistrate granting defendant a new trial was affirmed by the circuit court, and plaintiff appeals. Reversed and remanded, with instructions.

J. J Cantey, of Summerton, for appellant. Purdy & O'Bryan and John Wilson, all of Sumter, for respondent.

HYDRICK J.

On April 30, 1911, the Atlantic Coast Line Railroad Company issued its bill of lading to S. Hirschman & Son, at Charleston, S. C., covering eight sacks of corn consigned to plaintiff at Summerton, S.C. The defendant delivered only seven sacks, and plaintiff filed his claim with defendant's agent at Summerton for $1.70, the value of the undelivered sack. The claim was not paid within 30 days and plaintiff sued in magistrate's court and recovered judgment for $1.70, the value of the missing sack, and for the penalty of $50 imposed by the act of 1910 (26 Stat. 719) for the failure to pay the claim within 30 days. On defendant's motion, the magistrate granted a new trial and, in his report to the circuit court, on appeal from his order, stated, as his reason therefor, that he was "impressed with the assurance that the defendant could show that the goods referred to as lost never came in its possession." The circuit court upheld the magistrate's order granting a new trial, and plaintiff appeals to this court.

The statute approved May 13, 1903 (24 Stat. 1), makes Connecting carriers the agents of each other. Therefore proof that the defendant never received the undelivered sack could not affect its liability to plaintiff (Venning v. Railroad Co., 78 S.C. 42, 58 S.E. 983, 12 L. R. A. [N. S.] 1217, 125 Am. St. Rep. 768; Smith v. Railway, 89 S.C. 415, 71 S.E. 989), and, notwithstanding it should show on a new trial, "that the goods referred to as lost never came in its possession," the court would, nevertheless, be compelled to give judgment against it, because, under the statute, the Atlantic Coast Line Railroad Company, in issuing the bill of lading, was the agent of defendant, and, in an action by the consignee against defendant for loss of the goods, defendant is concluded by the bill of lading issued by its agent. Salley v. S. A. L., 76 S.C. 173, 56 S.E. 782; Thomas v. Railroad Co., 85 S.C. 537, 64 S.E. 220, 67 S.E. 908, 34 L. R. A. (N. S.) 1177, 21 Ann. Cas. 223. It is clear, therefore, that under the statute law of the state, and the undisputed facts of this case, there can be but one result, and that a judgment for the plaintiff. It necessarily follows that the magistrate committed error of law, when he set aside the only judgment which can be rendered, within the law, and granted a new trial, and it is equally clear that the circuit court erred in sustaining that order.

It is contended, however, that under the statute and decisions of this court the order is not appealable. Section 11 (D) of the Code of Procedure provides: "The Supreme Court shall have appellate jurisdiction for correction of errors of law, in law cases, and shall review upon appeal: *** 2. An order affecting a substantial right made in an action, when such order in effect determines the action and prevents a judgment from which an appeal might be taken, or discontinue the action, and when such order grants or refuses a new trial. *** Upon any appeal from an order granting a new trial on a case made, or on exceptions taken, if the Supreme Court shall determine that no error was committed in granting the new trial, it shall render judgment absolute upon the right of the appellant; and after the proceedings are remitted to the court from which the appeal was taken, an assessment of damages, or other proceedings to render the judgment effectual, may be then and there had in cases where such subsequent proceedings are requisite." The language of the Code above quoted makes it perfectly clear that this court must entertain appeals from orders which grant new trials, when they are based upon errors of law. The terms of the statute are mandatory--" shall review." It will be observed, however, that the jurisdiction to review such orders is confined to the correction of errors of law, in conformity to the limitation of the power of the court by the Constitution (section 4, art. 5), which confers jurisdiction "for the correction of errors at law, under such regulation as the General Assembly may by law prescribe." The court cannot, therefore, refuse to consider an appeal from an order granting a new trial, when it is based on error of law, without putting itself in the position of ignoring or violating a constitutional statute, which, in plain and unmistakable terms, makes an order granting a new trial appealable.

As above stated, the statute does not undertake to make an order granting a new trial appealable, when it is based upon questions of fact; and the court has correctly and consistently held, in cases too numerous to mention, that it has no power to review such orders. On the contrary, it has held, in a number of cases, that it can review orders granting new trials, when based upon error of law. Byrd v. Small, 2 S. C. 388, was the first case in which the provisions of the Constitution and statute above quoted were considered. In that case it was distinctly held that the power of the circuit court to grant or refuse new trials "is subject to the correction of this court, when his order granting or refusing a new trial involves a question of law." In Massey v. Adams, 3 S. C. 263, the appeal was from an order granting a new trial in an action of trespass to try title. The court entertained the appeal, and said: "The only question proper for our consideration is whether there was error of law in the order granting a new trial. If it was founded, either wholly or in part, on a conclusion from the facts contrary to that of the jury, then, according to the well-established principles governing the court in regard to appeals, in which propositions of law do not arise, we cannot interfere." Finding that questions of fact were involved, the order appealed from was sustained, and judgment absolute was given against appellant. In Caston v. Brooks, 14 S.C. 104, the appeal was from an order granting a new trial, but it was dismissed, because the appellant did not, in the notice of appeal, give his consent, as then required by the statute, that, if the order should be affirmed, judgment absolute should be rendered against him. The provision requiring such consent, as a condition of the appeal, was afterwards stricken from the statute by amendment. But the opinion distinctly recognizes the right to appeal from orders granting new trials where only questions of law are involved. The court said: "The clear object of demanding the assent of the appellant to a judgment absolute is to discourage appeals from orders granting new trials, except where the controversy is of such a nature that it may be finally disposed of upon the argument of pure questions of law in the appellate court. *** The party allowed to appeal without restrictions from such orders has two chances, he may contend for his verdict, that has been set aside, in the appellate court, and, on being dismissed from that court without relief, may return to the circuit and have a trial de novo of the whole case. The decision of the appellate court may possibly settle nothing of importance to the case, as on a second trial the subject and ground of exception may be entirely eliminated from the case. When, however, the whole question is one of law, capable of being finally disposed of by the appellate court no such inconvenience arises." (Italics added) In Ex parte Williams, In re Campbell v. Charleston, 7 S. C. 71, the court entertained an appeal from an order setting aside verdicts and granting new trials in certain cases, and reversed the order, because it was granted without notice to the plaintiffs in those cases.

Marshall v. Railway, 57 S.C. 138, 35 S.E. 497, is a case directly in point. That was an appeal from an order setting aside the verdict of a jury and granting a new trial. The order was based on an erroneous construction of the pleadings or for lack of evidence on a point not in issue--questions of law. The court, by Mr. Justice Jones, said (57 S.C. at page 138, 35 S.E. at page 497): "The appeal is from the order granting a new trial. The well-settled rule is that this court cannot review an order granting or refusing a new trial, except for error of law, as the court is without jurisdiction to review the judgment of the circuit court on questions of fact." Again (57 S.C. on page 141, 35 S.E. on page 498): "Inasmuch, then, as the circuit court based the granting of the new trial upon an erroneous construction of defendant's pleading, there was error of law. If the court had granted the new trial on his view of the evidence, and had concluded therefrom that the plaintiff had sustained the charge of negligence in the complaint, and that defendant had failed to sustain the defense of contributory negligence, we could not interfere, upon the rule stated at the beginning of this opinion. But this is not the case." The order was reversed and the case was remanded for judgment on the verdict. Epperson v. Stansill, 64 S.C. 485, 42 S.E. 426, is another case directly in point. In that case the circuit court granted a new trial on the ground that the jury had been erroneously instructed. On appeal, the order granting the new trial was reversed, because it was based on error of law; this...