Henry Sonneborn & Co. v. Southern Ry. Co.
| Decision Date | 31 March 1903 |
| Citation | 44 S.E. 77,65 S.C. 502 |
| Parties | HENRY SONNEBORN & CO. v. SOUTHERN RY. CO. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Fairfield County; Watts Judge.
Action by Henry Sonneborn & Co. against the Southern Railway Company. From judgment for plaintiffs, defendant appeals. Affirmed.
C. P Sanders, for appellant. J. E. McDonald, for respondents.
The appeal in this case is from a judgment on verdict in favor of plaintiffs in an action for damages alleged to have been caused by defendant's negligent and wanton conduct in putting off its train in Winnsboro, S. C., 10 trunks of sample clothing belonging to plaintiffs, during a severe rain and without any protection, whereby the samples became wet and injured.
1. The first exception assigns error in admitting the deposition of Moses S. Sonneborn, the objections thereto being: (1) That it was taken in the office of Shiver, Bartlett & Co., instead of Thos. K. Le Brou, pursuant to the notice; (2) when it appeared that the signature of the deposition had not been witnessed by the notary, there being no identification of the signature as being the true signature of the witness examined. These objections were properly overruled. The notice was that the deposition could be taken before Thomas K. Le Brou, a notary public, at his office, No. 21 Bank of Baltimore building, in the city of Baltimore, and the certificate states that it was taken by Thomas K. Le Brou, a notary public, at the office of Shiver, Bartlett & Co., No 21 Bank of Baltimore building, Baltimore , Md. It thus appears that the deposition was taken at the place noticed, and the inference is that the notary mentioned also had his office at that place. Besides, this defendant was present by representative at the taking of the deposition.
2. With reference to the second objection as to the identification of the signature of the deponent, such identification sufficiently appears by the certificate of the notary to the effect that he had sworn and examined the witness Moses S. Sonneborn, and that the questions and answers were contained in the pages constituting the deposition. The statute (section 2881 et seq., Code 1902) relating to such depositions does not require any other identification of the deponent's signature. The signature purporting to be that of Moses S. Sonneborn, and attached to the deposition is presumptively the signature of the witness Moses S. Sonneborn, who was sworn and examined by the officer certifying the deposition.
3. The second exception alleges error in allowing question No. 28 of the deposition of the witness Sonneborn, and the answer thereto, when it appeared that the witness had not made the entries in the book, nor could he testify to the fact contained in the entry in the books from his own knowledge. Interrogatory No. 28, and the ones immediately preceding, are as follows: The witness had previously testified that he saw the samples furnished to Mr. Browning, the traveling agent, and that he superintended the charging of the same at the time they were furnished. It thus appears that the grounds of objection are not based upon the facts. The witness, having seen the samples furnished to the agent, and superintending the charging the same on the books kept for that purpose, could certainly refresh his memory as to the value of the samples by an inspection of the books. State v. Collins, 15 S.C. 376, 40 Am. Rep. 697, and authorities therein mentioned.
4. The third, fourth, fifth, and sixth exceptions charge error in allowing the witness Browning to testify, over objection, as to loss or damage with respect to the salable value of the whole suits by reason of the injury to the coats. The trunks contained overcoats, and coats forming parts of full suits but the vests and pants of such suits were in Baltimore at the time of the injury. The objection urged to this testimony is that it is an attempt to prove special damages not alleged in the complaint. The fifth allegation of the complaint is as follows: "(5) That upon the arrival of the defendant's said cars at the town of Winnsboro, on which the plaintiffs' salesman and agent was a passenger as aforesaid, the defendant, by its agents, servants, and employés, recklessly, carelessly, negligently, willfully, wantonly, and in utter and willful disregard of the rights of the plaintiffs, put off the 10 said trunks of clothing samples upon the platform of its passenger station at the town of Winnsboro during a very hard downpour of rain; and then and there recklessly, carelessly, willfully, and wantonly neglected, failed, and refused to move said trunks out of the rain and put them in its baggage room or other place of shelter, or to cover the same with canvas cloth, as was its duty in the circumstances, in order that the samples in said trunks might be kept dry and uninjured by the rain; but, on the contrary, the defendant carelessly, negligently, recklessly, willfully, and wantonly placed and turned said trunks with their ends upward instead of placing them down flat--in which first position the rain could more easily run into said trunks and wet contents thereof--and thus allowed the said 10 trunks of samples belonging to plaintiffs as aforesaid to remain unprotected in the rain and weather for the space of one hour, whereby the said samples of clothing in said trunks were thoroughly wet and saturated with the rain water, and were thereby damaged and injured to the amount of one thousand ($1,000) dollars." In the case of Lipscomb v. Tanner, 31 S.C. 52, 9 S.E. 733, the court said: ...
To continue reading
Request your trial