Ingram v. Davis

• Decision Date: 31 December 1924
• Docket Number: (No. 11636.)
• Citation: 125 S.E. 920
• Parties: INGRAM. v. DAVIS, Agent.
• Court: South Carolina Supreme Court

125 S.E. 920

INGRAM.

v.DAVIS, Agent.

(No. 11636.)

Supreme Court of South Carolina.

Dec. 31, 1924.

Appeal from Common Pleas Circuit Court of Chesterfield County; R. W. Memminger, Judge.

Action by T. L. Ingram against James 0. Davis, Agent. From judgment giving him insufficient relief, plaintiff appeals. Reversed, and new trial ordered.

R. E. Hanna, of Cheraw, for appellant.

Pegues & Murray, of Cheraw, for respondent.

MARION, J. Action to recover of the United States Railroad Administration, in charge of the Atlantic Coast Line Railroad as terminal or delivering carrier, the value of 1 mule not delivered in a shipment of 20 mules and 5 horses shipped from East St. Louis, 111., to the plaintiff at Cheraw, S. C. The presiding judge held that plaintiff was not entitled to recover the value of the mule and directed a verdict for the plaintiff in the sum of $7.06, an amount which defendant admitted to be due on account of certain charges for freight, feeding, etc., improperly collected. From that order of the circuit court the plaintiff appeals.

The one question presented is whether the trial judge erred in holding that the evidence as a whole was open to no other reasonable inference than that the mule not delivered had died in the hands of a connecting carrier and before delivery to the defendant, and hence that the presumption of loss by the defendant, as terminal carrier, was so conclusively rebutted as to warrant the direction of a verdict.

Considered from the viewpoint of the plaintiff, the evidence established, or tended to establish, the following facts: That 20 mules and 5 horses, in good condition, after due inspection by a veterinarian, were shipped in a single car under a bill of lading issued by the United States Railroad Administration, Louisville & Nashville.Railroad, from East St. Louis, 111., to the plaintiff at Cheraw, S. C.; that upon arrival at Cheraw, S. C, over the line of the Atlantic Coast Line Railroad (United States Railroad Administration), the car contained only 19 mules and 5 horses; that the shipment moved on a "collect waybill" from Florence, S. C, to Cheraw, S. C, upon which appeared the entry "20 mules and 5 horses" and the notation "no exceptions"; and that upon arrival of the shipment at Cheraw the defendant collected of the plaintiff a freight and expense bill which included the freight on the mule not delivered, a charge for feeding the missing mule at Florence, and a veterinarian's bill for an autopsy.

The defendant adduced the testimony of four witnesses—three employees and one veterinary surgeon—to the effect that the missing mule died while the car of stock was in the possession of the Georgia Railroad andbefore delivery to and acceptance by the Atlantic Coast Line, and that the entries on the expense bill and waybill, showing that 20 mules and 5 horses had been fed and handled at Florence, S. C, etc., had been made in error.

The failure to deliver part of the single shipment was a probative fact which raised the presumption of negligent loss by the defendant, the delivering carrier. Mc-Leod v. Railroad, 93 S. C. 75, 76 S. E. 19, 705; Walker v. Railroad Co., 76 S. C. 308, 56 S. E. 952; Eastover Mule & Horse Co. v. Railroad Co., 99 S. C. 470, 83 S. E. 599. That presumption was reinforced by the waybill and the freight and expense bill which contained...