Davis Bros. v. Blue Ridge Ry. Co.

• Decision Date: 16 November 1908
• Parties: DAVIS BROS. v. BLUE RIDGE RY. CO. et al.
• Court: South Carolina Supreme Court

62 S.E. 856

81 S.C. 466

DAVIS BROS. v. BLUE RIDGE RY. CO. et al.

Supreme Court of South Carolina

November 16, 1908

Appeal from Common Pleas Circuit Court of Anderson County; D. E Hydrick, Judge.

Action by Davis Bros. against the Blue Ridge Railway Company and another. Judgment for plaintiffs, and defendants appeal. Affirmed.

Bonham Watkins & Allen, for appellants.

Paget & Watkins, for respondents.

WOODS J.

The plaintiffs delivered to the Southern Railway Company at Knoxville, Tenn., 26 mules to be shipped to Anderson, S.C. There was a written contract of shipment, which expressed as its consideration a special freight rate; the regular rate being 20 per cent. higher. The contract contained, among other stipulations, a provision that the shipper would indemnify and save harmless the Southern Railway Company and its connecting carriers against all claims for loss or damage to live stock, except such loss or damage as might be due to negligence of the carrier. Another provision was that $100 should be taken to be as much as any mule or horse was reasonably worth, and that no claim for a mule or horse should exceed that sum. The complaint sets up another contract with the Southern Railway Company to ship the mules by way of Atlanta, instead of by Spartanburg, and alleges that the plaintiff, relying on this contract, "had a competent and skillful man at Atlanta, Ga., to attend the unloading, feeding, and watering and care of the said mules upon their arrival en route to their destination." Negligence is thus charged: "That defendants negligently, willfully, and wantonly and in reckless disregard of plaintiffs' rights as shippers transported the said mules by a different and less favorable route than the one directed, and over which they had contracted to transport them, thereby delaying the arrival of the said mules at their destination by several days, and thereby preventing plaintiffs' agent attending to their unloading, feeding, and watering and care in Atlanta, Ga and also thereby causing them to be badly shaken and bruised up, and that defendants further negligently, willfully, and wantonly, and in reckless disregard of plaintiffs' rights as shippers, refused to give the said mules proper feed, water and rest on their said journey." It is further alleged that, when the mules were unloaded, "it was found that one of said mules was dead in the car, and that the others were in such a damaged and weakened condition that two of them died soon thereafter, and the remainder were unfit for plaintiffs' trade, and had to be sold at greatly reduced prices as damaged and inferior stock." The plaintiffs recovered judgment for $700 damages.

The question made by the appeal will be discussed without referring to the exceptions in detail. The first point made is that the plaintiffs should not have been allowed to prove by parol evidence a contract with the Southern Railway Company to ship the mules by Atlanta, and not by Spartanburg. It is true there was a written contract of shipment containing many stipulations, but it was silent as to the route, and therefore evidence as to a separate agreement for a particular route was not incompetent, as tending to contradict or vary the written contract. Chemical Co. v. Moore, 61 S.C. 166, 39 S.E. 346; Ashe v. Carolina & N.W. Ry. Co., 65 S.C. 134, 43 S.E. 393; Earle v. Owings, 72 S.C. 362, 51 S.E. 980. On the issue of the extent to which the value of the mules was impaired, it was competent for the witnesses Gaillard and Davis, both of whom were stock dealers, to give their estimates. Millam v. So. Ry. Co., 58 S.C. 247, 36 S.E. 571; Sanders v. A. C. L. R. R. Co., 79 S.C. 219, 60 S.E. 526. The measure of damages was the difference between the market value of the mules at Anderson, uninjured by defendant's negligence, and their value at Anderson after injuries due to such negligence. No doubt that the prices which the plaintiffs paid at Knoxville and those which they obtained at Anderson for the mules would have had weight with the jury as factors entering into the estimate of the extent of the injuries, but these prices would not have been conclusive and exclusive of all other factors. If the defendants desired to obtain the benefit of evidence of these prices, they had the right to require the plaintiffs to produce the books by a subpoena duces tecum.

The witness J. M. Davis was allowed to testify that the Southern Railway had never quoted him any other rate than that which he paid; the object of the testimony being to lay a foundation for the position that, as there was only one rate there was no consideration for the release of the defendants from liability, except for negligence, and for the agreement limiting the amount of the recovery for each mule to $100. This testimony was in direct contradiction of the written contract of shipment already referred to, but the defendant cannot complain of its admission because when the testimony was admitted the written contract had not been introduced. The circuit judge plainly intimated he would not admit the evidence if at variance with the written contract, and said to defendant's counsel he could then introduce the contract. But defendant's counsel did not accept the suggestion. Afterwards the contract was introduced by defendant, and the circuit judge found it expressed on its face that there was a freight rate for stock shipped without the special limitation of liability, 20 per cent. higher than that allowed plaintiffs; and, in consequence, charged the jury the plaintiffs were presumed to know what was in their written contract and were bound by all its provisions. This instruction that the defendants were entitled to the benefit of all the limitations of liability mentioned in the written contract made valueless to the plaintiffs the testimony that only one rate had been brought to their attention. The plaintiff J. M. Davis testified that he and Anderson, the railroad agent, had requested Mr. Turner, who had special knowledge of such matters, to make an examination of the dead mules. The defendants, claiming that it was to be inferred from this that Turner was plaintiff's agent, offered evidence of Turner's declarations to Dr. Powers as to the manner in which the ribs of one of the mules were...