Gibson v. Atlantic Coast Line R. Co.
| Decision Date | 15 April 1911 |
| Parties | GIBSON v. ATLANTIC COAST LINE R. CO. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Charleston County; C. G Dantzler, Judge.
Action by C. M. Gibson against the Atlantic Coast Line Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.
W Huger Fitz Simons, for appellant. Legare, Holman & Baker, for respondent.
This action was brought against defendant, as the initial or receiving carrier, to recover damages for negligent delay in the delivery of nine consignments of cabbages which were shipped by plaintiff from Meggetts, in this state, to his factors in other states for sale. In each case the delay was on the line of a connecting or the delivering carrier. The bill of lading provided for through transportation, but contained a stipulation that "no carrier shall be liable for loss or damage not occurring on its portion of the route," and this stipulation was properly pleaded as a defense to the action. The bill of lading contained, also the following stipulation: "Claims for loss or damage must be made in writing to the agent at point of delivery promptly after arrival of the property, and if delayed for more than thirty days after the delivery of the property, or after due time for the delivery thereof, no carrier hereunder shall be liable in any event." This stipulation was not pleaded in the answer as a defense. The testimony of one of the witnesses for plaintiff was taken de bene esse under the statute (Civ. Code 1902, § 2881), which requires "reasonable notice, not less than ten days" to the opposite party or his attorneys. On October 5, 1909, plaintiff's attorneys served the proper notice for the taking of the testimony de bene esse of Wm. J. Blankford, in the city of Baltimore, on October 16th. On October 7th a bar meeting was held, and this case was set for trial on October 15th. It appears, however, that cases are rarely reached for trial on the day assigned, and this case was not reached until October 19th. Nevertheless defendant's atttorneys served notice on plaintiff's attorneys on October 8th that they would move the court to suppress the deposition on the ground that the notice was given too late--that is, for the taking of the testimony on the 16th to be used in a case tried on the 15th--and also on the ground that the notice was unreasonable and insufficient, because, although the case had been pending over a year, the notice was not given till the present term of the court, when counsel for defendant was compelled to be in court to attend to the trial of cases, and could not therefore attend the taking of the deposition in a distant city at the time specified. The motion to suppress was overruled. The plaintiff had judgment, and defendant appealed.
The plaintiff took the chances of the Blankford deposition not being in on the day the case was reached and called for trial, and, if it had not been in at that time, he might and probably would have been ordered to trial without it. The notice to take the deposition having been served before the case was set for trial, defendant was thereby apprised at the time it was set that it was set for the day before the time fixed for taking the deposition. If defendant desired to rely upon the deposition, it should then have objected to the setting of the case for trial at such an early date. Failing to do so, it also took the chance of its being received in time.
It was not made to appear to the court that counsel for defendant were all so engaged in the work of trying cases in court that neither of them could have appeared at the taking of the deposition; nor was it made to appear that, but for their being so engaged, they or some of them would have appeared at the taking of the deposition, nor that other counsel could not have been gotten to represent them in taking the testimony, nor has it been made to appear that defendant was prejudiced by refusing the motion. Therefore there was no error in refusing to suppress the deposition. Such matters must necessarily be left largely to the discretion of the trial court.
We have frequently held that a stipulation in the contract of carriage exempting a carrier from liability for loss or damage not occurring on its own line or portion of the route is valid (Hill v. Railway, 43 S.C. 461, 21 S.E. 337; Dunbar v. Railway, 62 S.C. 414, 40 S.E. 884), but the plaintiff relied on what is known as the Carmack amendment to the act of Congress regulating commerce between the states (chapter 3591, § 7, 34 Stat. 595 [U. S. Comp. St. Supp. 1909, p. 1163]) to avoid that stipulation. That amendment, passed June 30, 1906, reads as follows:
The defendant attacked the amendment on numerous constitutional grounds, which we are spared the necessity of considering, because the Supreme Court of the United States, whose decision upon the questions involved is controlling, has sustained the constitutionality of the amendment upon all the grounds upon which it is here assailed. Atlantic Coast Line R. Co. v. Riverside Mills, 219 U.S. 186, 31 S.Ct. 164, 55 L.Ed. --, decided January 3, 1911.
But it is contended, even though the Carmack amendment be valid, the state courts have no jurisdiction of causes of action arising under the act of Congress to regulate commerce between the states--that the act expressly limits the jurisdiction of such cases to the Interstate Commerce Commission and the federal courts. Act Feb. 4,...
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