Daughty v. Nw. R. Co. Of South Carolina

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: HYDRICK
• Citation: 92 S.C. 361,75 S.E. 553
• Decision Date: 02 September 1912
• Parties: DAUGHTY . v. NORTHWESTERN R. CO. OF SOUTH CAROLINA.

75 S.E. 553
(92 S.C. 361)

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

Supreme Court of South Carolina.

Sept. 2, 1912.

1. Carriers (§ 177^*)—Connecting Carriers-Failure to Deliver Goods Covered by Bill of Lading.

Connecting carriers, being by Act May 13, 1903 (24 St. at Large, p. 1), made agents of each other in case of an intrastate shipment, so that the terminal carrier is estopped to deny, as against the consignee, receipt by the initial carrier of all the goods for which it issued a bill of lading, proof that the terminal carrier did not receive part of such goods does not relieve it of liability to the consignee for nondelivery thereof.

[Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 775-789, 791-803; Dec. Dig. § 177.*]

2. Appeal and Error (§ 110*)—Appealable Orders—New Trial.

Where there was error of law in granting a new trial, as in granting it to allow proof of an immaterial thing, appeal lies from the order; Code Civ. Proc. 1902, § 11 (D), providing that the Supreme Court shall review an order granting or refusing a new trial, but confining its jurisdiction to the correction of errors of law, in conformity to the limitation of its power by Const, art. 5, § 4, giving it jurisdiction for correction of errors at law.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 740-748; Dec. Dig. § 110.*]

3. Courts (§ 89*)—Stare Decisis—Conflicting Decisions.

The doctrine of stare decisis has no application, where there is a conflict in the decisions.

[Ed. Note.—For other cases, see Courts, Cent. Dig. §§ 311, 312; Dec. Dig. § 89.*]

Gary, C. J., and Watts, J., dissenting.

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 Ins 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

[75 S.E. 554]

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...