Ingram v. Hines

• Decision Date: 18 December 1923
• Docket Number: 11379.
• Parties: INGRAM v. HINES, DIRECTOR GENERAL.
• Court: South Carolina Supreme Court

120 S.E. 493

126 S.C. 509

INGRAM v. HINES, DIRECTOR GENERAL.

No. 11379.

Supreme Court of South Carolina

December 18, 1923

Appeal from Common Pleas Circuit Court of Chesterfield County; T. J Mauldin, Judge.

Action by S. F. Ingram against Walker D. Hines Director General. From an order granting a new trial, after a verdict had been rendered for plaintiff, plaintiff appeals. Appeal dismissed, and case remanded for a new trial.

Watts and Fraser, JJ., dissenting.

The order of Circuit Judge T. J. Mauldin, referred to in the opinion of Justice Cothran, was as follows:

This case was tried at Chesterfield at the spring, 1922, term of the common pleas court, resulting in the following verdict of the jury: "We find for the plaintiff against Walker D. Hines, Director General, seven hundred fifty and 95/100 dollars." The case is now before me on a motion for a new trial, the motion having been heard and marked "heard" during the session of the Chesterfield court, and decision thereon reserved.

The determination of this motion depends upon the question as to whether the evidence discloses any actionable negligence that can be imputed to the defendant, the Director General. The defendant was not an insurer of the animals alleged to have been transmitted, and the jury were so charged. By this verdict the jury say that the Director General was negligent in that he "failed to properly care for and feed said mules in transportation of same."

The plaintiff's testimony was to the effect that the animals in question were in good condition so far as he knew when loaded in Georgia for transportation; that they were taken from the train at Hamlet, where they died. There is no evidence that any stipulation of the contract of shipment as to the time to be occupied in transit or as to the feeding of the mules was violated. In fact, it seems from the evidence that the contract of shipment in these respects was shown to have been fully complied with. On the contrary, the evidence offered in behalf of the defense was to the effect that a veterinarian was called in, and that the animals in question died from some fever peculiar to horses and mules, which disease was not attributable to any failure to "properly care for and feed said mules in transportation of same," but that the disease of which they died in its usual course runs for some time and is indicated by certain symptoms readily distinguishable.

All the testimony offered in behalf of the plaintiff, as to this phase of the matter, was that the mules were in good condition when loaded, so far as the plaintiff knew, and substantially that the plaintiff was not a horse doctor and did not know whether the animals were diseased when loaded. A careful review of his case makes me conclude that to hold that there was actionable negligence chargeable to the defendant as the direct and proximate cause of the death of these animals would necessarily involve the holding that the carrier was the insurer of the animals, and for this there is no warrant of law.

It is therefore ordered that a new trial be, and the same is hereby, granted.

G. K Laney, of Chesterfield, and R. E. Hanna, of Cheraw, for appellant.

C. L. Prince, of Cheraw, for respondent.

COTHRAN J.

Action for $740.95 damages, on account of the loss of three mules shipped over the Seaboard Air Line Railway, from Atlanta, Ga., to Pageland, S. C., on January 22, 1920. Upon trial the plaintiff had a verdict for the full amount claimed, but upon motion of defendant the circuit judge ordered a new trial, and from this order the plaintiff has appealed.

The evidence tends to establish the following facts:

The plaintiff purchased in Atlanta 19 mules and 2 horses on January 22, 1920, which he prepared to ship to Pageland, S. C., in Chesterfield county, over the Seaboard Air Line Railway. It may be a typographical error that the stock was loaded on January 22d, and did not leave Atlanta until January 28th; but, however that may be, the record so shows, and upon this appeal it will be so taken.

The movement of the stock was as follows: Loaded in Atlanta January 22d; left Atlanta January 28th; arrived in Abbeville January 29th, 6 p. m.; unloaded, fed, and watered at Abbeville January 29th, 6 p. m.; reloaded at Abbeville January 30th, 2 a. m.; left Abbeville January 30th, _______ a. m.; arrived at Hamlet January 31st, 10:30 a. m.; unloaded, fed, and watered at Hamlet January 31st, 11 a. m.; reloaded at Hamlet February 1st, at 7 p. m.; arrived at Pageland February 4th.

Three of the mules were sick when unloaded at Hamlet, and died there, before the remainder of the carload was reloaded for the final destination. The plaintiff testified that he and a veterinarian inspected the stock closely before they were loaded in Atlanta and that they were in perfect condition. The agent of the carrier at Abbeville testified that, while they were unloaded there to be fed and watered, there were no exceptions noted as to the condition of the animals. The veterinarian produced by the defendant testified that the mules died from influenza, which might have been caused by exposure.

At the close of all of the testimony the defendant moved for a directed verdict, upon the ground that there was no evidence in the case of any act of negligence on the part of the carrier, causing the death of the mules. The circuit judge refused the motion, saying:

"I rather think there is some issuable fact for the jury to settle, and I will let them determine it."

His order granting a new trial was based upon a consideration of the evidence, and a conclusion therefrom inconsistent with the verdict. This is shown by his refusal to direct a verdict, and from the terms of his order, which will be reported. It is clear from the authorities that under these circumstances his order is not appealable. See the case of Daughty v. Northwestern R. Co., 92 S.C. 361, 75 S.E. 553, which contains an exhaustive review of the cases upon the subject, and particularly the cases of Massey v. Adams, 3 S. C. 263, Marshall v. C. & S. R. Co., 57 S.C. 138, 35 S.E. 497, and Pace v. A. C. L. R. Co., 83 S.C. 33, 64 S.E. 915. In the Massey Case the court said:

"If it [the order for a new trial] was founded, either wholly or in part, on a conclusion from the fact contrary to that of the jury, * * * we cannot interfere."

In the Marshall Case:

"If the court had granted the new trial on his view of the evidence, and had concluded therefrom that plaintiff had sustained the charge of negligence, * * * we could not interfere."

In the Pace Case, it was held that, where the new trial was granted "on the ground that there was no testimony that the goods alleged to have been damaged were injured while in the possession of the defendant," the order was not appealable. But, assuming that the order was granted upon the ground that there was no evidence at all tending to fix liability upon the carrier, and that such ruling presented an issue of law, it by no means follows that the order was appealable. The court has held in numerous cases, many of which are cited in the respondent's argument particularly Daughty v. Northwestern R. Co., 92 S.C. 361, 75 S.E. 553, that in order to render it appealable, two essential elements must appear in an order granting a new trial: (1) The order must have been based upon a matter of law; and (2) the matter of law must have been so controlling in its influence as to be decisive of the case,...