Faulk v. Columbia, N. & L.R. Co.

• Decision Date: 09 April 1909
• Citation: 64 S.E. 383,82 S.C. 369
• Parties: FAULK v. COLUMBIA, N. & L. R. CO.
• Court: South Carolina Supreme Court

64 S.E. 383

82 S.C. 369

FAULK v. COLUMBIA, N. & L. R. CO.

Supreme Court of South Carolina

April 9, 1909

Appeal from Common Pleas Circuit Court of Richland County; Ernest Gary, Judge.

Action by J. H. Faulk against the Columbia, Newberry & Laurens Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

W. H Lyles, for appellant.

Nelson & Nelson, for respondent.

JONES J.

On November 6, 1905, plaintiff shipped a car load of horses over defendant's line from Columbia, S. C., to Newberry, S.C. When unloaded at Newberry, one horse was found injured, his leg having fallen through a defective floor of the car furnished by defendant, from which injury the horse died. Plaintiff brought this action to recover damages for the loss of the horse at a valuation of $165 and the reasonable expense incurred in trying to cure it, and recovered judgment for $200.

The vital question was whether the shipment was subject to a classification under which the value of the car load of horses was limited at $75 per head. No bill of lading was issued or signed. The plaintiff phoned for the car, and ascertained that the rate would be $19 for the car load. The car was placed for plaintiff, and was loaded by him Sunday night, and was unloaded by him at Newberry early Monday morning. During the conversation over the phone nothing was said about classification or valuation other than the rate should be $19 per car load, and plaintiff testified that he knew nothing of the classification as established by the Railroad Commission. The only paper in writing was the waybill covering a shipment of a car load of horses "weight 20,000 class N, rate $19.00," which waybill plaintiff had never seen until the day before the trial. There was not even an oral agreement as to classification and valuation.

The defendant proved the schedule of rates and the rules and regulations adopted by the Railroad Commission governing intrastate shipments at the time, and there was some evidence that the tariffs and specifications were posted or published for the benefit of the public. It appears that the Southern Classification No. 34, applies to all roads in South Carolina subject to the classification and rules as provided in the South Carolina exception sheet. The Southern Classification shows the maximum valuation of live stock shipments for horses and mules each $75, and the South Carolina exception sheet classes horses and mules at class N, but does not specify valuation. Rate table, local rate tariff, distance between 40 and 50 miles, shows the highest rate per car load of 20,000 in class N to be $19, but nothing is stated therein as to valuation. Some of the rules of the Southern Classification provide:

"(1) The reduced rates specified in this classification will apply only on property shipped subject to the conditions of this company's bill of lading. If the shipper elects not to accept the said reduced rates and conditions, he should notify the agent of the receiving carrier, in writing, at the time his property is offered for shipment, and if he does not give such notice, it will be understood that he desired the property subject to the standard bill of lading conditions in order to secure the reduced rate thereon. Property carried not subject to the standard bill of lading will be at the carrier's liability, limited only as provided by common law and by the laws of the United States and of the several states in so far as they apply. Property thus carried will be charged twenty (20) per cent. higher (subject to a minimum increase of one [1] cent per hundred pounds) than if shipped subject to the conditions of the standard bill of lading."

"(6) Where the classification provides for reduced rate, based on a certain fixed valuation, the following special release, containing the agreed valuation, must be written and signed by the shipper or owner upon the face of the bill of lading or shipping receipt.

'It is hereby agreed that the property herein designated is of the value of *** and the rate of freight charged thereon is based on such agreed valuation, and on the condition that the carrier assumes liability only to the extent of such agreed valuation and no further."'

The standard bill of lading contained this provision: "The amount of any loss or damage for which any carrier becomes liable shall be computed at the value of the property at the place and time of shipment under this bill of lading, unless a lower value has been agreed upon or is determined by the classification upon which the rate is based, in either of which events such lower value shall be the maximum price to govern such classification." The testimony further shows "that rules all intend that a bill of lading shall be issued for every shipment."

Upon this state of facts the court was requested by defendant's counsel to instruct the jury as follows "That, in the absence of a special...