Deaver-Jeter Co. v. Southern Ry. Co.

Decision Date01 October 1913
Citation79 S.E. 709,95 S.C. 485
CourtSouth Carolina Supreme Court

Appeal from Common Pleas Circuit Court of Union county; F. B. Gary Judge.

Action by the Deaver-Jeter Company against the Southern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

See also, 91 S.C. 503, 74 S.E. 1071.

B. L Abney, of Columbia, and Sanders & De Pass, of Spartanburg for appellant. John K. Hamblin, of Union, for respondent.


In August, 1908, the Fechheimer-Keifer Company, of Cincinnati, Ohio, sold plaintiff a bill of goods and delivered them to the Louisville & Nashville Railroad Company for transportation and delivery to plaintiff at Carlisle, S.C. The goods were destroyed at Hamberg, S. C., while in defendant's possession. Defendant denied liability for the loss on the ground that it was caused by the act of God, to wit, an unprecedented flood in the Savannah river. Under the instructions of the court, the verdict establishes the fact that the flood was not the sole cause of the loss, but that the goods could have been saved by the exercise of due care, after the defendant knew, or should have known, that they were in peril.

Appellant's first contention is that the circuit court had no jurisdiction of the action, because the shipment was interstate, and, therefore, under whet is known as the Carmack amendment to the act of Congress regulating interstate commerce, only the initial carrier is liable for the loss, and, of course, that carrier can be sued only in the courts of the state of its legal residence. We have recently decided that contention adversely to appellant's view in the case of Varnville Furniture Company v. C. & W. C. Ry. Co., 79 S. E.700.

The next question is, Is the plaintiff the real party in interest, and entitled to maintain this action? There is no doubt of it. The testimony is that the goods were sold to the plaintiff and delivered to the initial carrier for the plaintiff, and the bill of lading was sent to the plaintiff. The general rule is that, in such circumstances, in the absence of an intention or agreement, expressed or implied, to the contrary, the title is in the consignee. 35 Cyc. 317; 4 A. & E. Enc. L. (2d Ed.) 525. In so far as the agreement of the Fechheimer-Keifer Company to save the plaintiff harmless from the costs and expenses of the action is relied upon by the defendant to sustain this objection, it is concluded by the decision on the former appeal in this case. 91 S.C. 503, 74 S.E. 1071. In so far as the testimony of the manager of the plaintiff company is relied upon for that purpose, it may be said that it was nothing more than his opinion on a question of law. The undisputed facts vested in plaintiff at least a prima facie title to the goods, and the right to maintain the action. There was no direct evidence that the sale had ever been rescinded. Even if it can properly be said that there was any conflict in the evidence, the question was submitted to the jury and resolved in plaintiff's favor.

There was no error in the instruction that the burden was upon defendant to prove that the goods were destroyed by the act of God, and that it had exercised due care to prevent the consequences of the act of God.


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