Gilliland & Gaffney v. Southern Ry. Co.
| Decision Date | 21 February 1910 |
| Citation | 67 S.E. 20,85 S.C. 26 |
| Parties | GILLILAND & GAFFNEY v. SOUTHERN RY. CO. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Spartanburg County; J. C Klugh, Judge.
Action by Gilliland & Gaffney against the Southern Railway Company. From a judgment for plaintiffs, defendant appeals. Affirmed.
Sanders & De Pass, for appellant. Wilson & Osborne, for respondents.
On February 27, 1907, the plaintiffs, dealers in horses and mules, shipped a carload of stock consisting of 11 horses and 5 mules from Atlanta, Ga., to Spartanburg, S. C. over the defendant's railroad. A judgment was recovered for injuries to the stock in transit under this allegation "That at Greenville, South Carolina, a station on its line, defendant unloaded such stock, in an unfit, unsuitable, and unprotected place, where for several hours they were subjected in the mud to very severe cold, rain, wind, and sleet; in consequence of which they contracted severe colds and other ailments, were stiffened, hair-turned, and rendered unsalable, and permanently injured, and plaintiffs thereby made to suffer much damage." It was further alleged in the complaint that the plaintiff had specially warned the defendant not to expose the stock to such weather.
The first defense was a general denial, but the defense involved in the appeal is that the plaintiffs, in consideration of a reduced freight rate, made a contract with the defendant, embodied in the bill of lading in this language: "That he will load and unload said animals at his own risk, and feed and water and attend the same at his own expense and risk while they are in the stockyards of the railway company awaiting shipment, and while on the cars, or at feeding or transfer points, or where they may be unloaded for any purpose, whether arising from accident or from delay of trains, or otherwise, and to that end he or his agent in charge of said live stock shall pay regular published passenger fare when proper, under rules governing transportation of live stock, and shall ride upon the freight train in which said animals are transported, and in case the railroad company shall furnish laborers to assist in loading and unloading or caring for said live stock, they shall be subject to the orders and shall be employés of the party of the second part while so assisting, provided, however, that in the event that the party of the second part shall fail to properly care for, feed, or water the said live stock during transportation the railroad company may itself care for, water, and feed the same at the expense of the owner thereof, and shall and may have a lien upon the said live stock for the amount of its expenditures in that respect." The answer further alleges: "That the plaintiffs failed to attend to the said horses and mules, or to unload, feed, and water and care for the same, as they had contracted to do, and that any injuries which came to the said animals were caused by the failure of the plaintiffs to comply with their said contract, as hereinbefore stated." The answer set up also this provision of the contract: "That as a condition precedent to any right to recover any damages for loss or injury to said live stock, notice in writing of the claim thereof shall be given to the agent of the carrier actually delivering said live stock, wherever such delivery may be made, and such notice shall be given before said live stock is removed or is intermingled with other live stock"; and alleged that the plaintiff unloaded the stock and allowed it to be mingled with other stock before making any claim.
The evidence offered by the plaintiff, none of which was disputed, tended to establish these facts: The horses and mules were delivered in good condition to the defendant company in Atlanta, and a bill of lading was issued, containing the stipulations above set out. Neither of the plaintiffs accompanied the stock or made any provision for their care. The defendants unloaded the animals in their yard at Greenville, an intermediate station; and fed and watered them. These things were done at night in a very cold rain, and the yard was uncovered and muddy. The plaintiffs attempted to prevent the unloading on account of the severity of the weather, but when the message reached Greenville the horses and mules were already in the yard.
The first position taken by the defendant's counsel is that the circuit judge should have directed a verdict as requested by them on two grounds: First. "That under the law of Georgia it was the duty of the plaintiffs, under their contract with the defendant, to go along with the animals, at their own risk, feed, water and attend to the same, and, as the evidence shows conclusively that they failed to do so, they could not under the law of Georgia recover against the defendant for any damages done said animals while being fed and watered by the defendant in the absence of the plaintiff." Second. "That the plaintiffs failed to give notice of the injuries to the stock to the agent of the defendant delivering it, as required by the other clause of the bill of lading set out in the answer. The contract of shipment was made in Georgia and required part performance in that state and part in South Carolina. The rule which prevails in most jurisdictions, including this state, is that under such conditions any question as to the nature, validity, and interpretation of that portion of the contract to be performed partly in Georgia and partly in South Carolina, namely the portion which related to safe transportation from the point of delivery to the point of destination, would be determinable under the laws of Georgia, unless there was evidence of the intention of the parties that a different law should be applied. Frasier v. Charleston & Western Carolina Ry., 73 S.C. 140, 52 S.E. 964; Wharton on Conflict of Laws, 1062-1064. The record indicates that the circuit judge adopted the general rule and applied the laws of Georgia in the trial of the case. The Supreme Court of Georgia has held, as shown by the reports of that state introduced by the defendant, that under such a bill of lading as this the shipper cannot hold the carrier liable for injuries which resulted from failure to properly load and unload the stock, or for lack of feed, water, and attention; because the shipper undertakes to load and unload, and to supply necessary feed, water, and attention. Susong v. Fla. Cent. R. R. Co., 115 Ga. 361, 41 S.E. 566; Seaboard R. R. v. Cauthen, 115 Ga. 422, 41 S.E. 653; Central of Georgia R. Co. v. James, 117 Ga. 832, 45 S.E. 223. But that court has also held that for a common carrier to avail itself of an exception to its usual liability, set out in the contract of shipment, it must show that the injury and loss fell within the exception, and were not caused by its negligence. Atlanta, etc., R. R. Co. v. Broome, 3 Ga.App. 641, 60 S.E. 355; Carter v. Sou. R. R. Co., 3 Ga.App. 34, 59 S.E. 209. Applying the law as thus laid down, it was the duty of the shipper to load and unload and to supply food, water, and attention, but it was the duty of the railroad company to supply a proper place to unload the stock and to have proper protection for them; and if the horses and mules were injured because the carrier neglected to have a proper place and proper protection for the unloading, it would be liable for the resulting injury. There was evidence tending to show that the injury was due to the negligence of the carrier in these particulars, and therefore the circuit judge was right in refusing to instruct the jury that the mere fact that the animals were injured "while being fed and watered" would, under the law of Georgia, prevent recovery, and in charging instead: As both parties acquiesced in the application of the laws of Georgia, this conclusion as to the law of that state is decisive of the question now under consideration as made in this case, whether the laws of Georgia were really applicable or not. There is, however, a federal statute which was not called to the attention of the circuit court. It provides:
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