Johnson v. Southern Ry.

• Decision Date: 27 June 1904
• Citation: 48 S.E. 260,69 S.C. 322
• Parties: JOHNSON v. SOUTHERN RY.
• Court: South Carolina Supreme Court

48 S.E. 260

69 S.C. 322

JOHNSON v. SOUTHERN RY.

Supreme Court of South Carolina

June 27, 1904

Appeal from Common Pleas Circuit Court of Fairfield County Townsend, Judge.

Action by W. J. Johnson against the Southern Railway. From judgment of circuit court sustaining judgment of Magistrate Cathcart defendant appeals. Modified.

J. E McDonald, for appellant. G. W. Ragsdale, for respondent.

GARY A. J.

The record contains the following statements of facts: "The above four cases were commenced by the service of a magistrate's summons and a complaint on the 16th day of June, 1903. These four separate actions were brought to recover the value of certain articles of merchandise which were shipped over the road of defendant (appellant) and consigned to plaintiff (respondent) at his place of business, Ridgeway, S. C.; and also to recover in each case the statutory penalty of fifty dollars for failure and neglect to pay, or refuse to pay, the claim within sixty days after making demand for the said losses. The losses occurred in 1902, and these actions were brought under section 1711, Rev. St. 1902. The complaint in each case was practically the same. The only questions in this case are whether or not the magistrate and his honor Judge Townsend erred in holding that section 1711, vol. 1, of the Code of Laws of 1902, had not been repealed by a subsequent act of the Legislature, and, if not repealed, then whether the same was constitutional."

To be entirely accurate, it may be well to state that his honor the circuit judge held that section 1711 of the Code of Laws was repealed by the said act of 1903 as to the time of payment of claims, but not otherwise, so as to affect this case. Section 1711 of the Code of Laws is as follows: "Sec. 1711. All common carriers doing business in this state shall be required to pay for or refuse to pay for all loss, breakage or damage from breakage, damage or loss of articles shipped over the lines of said common carriers within sixty days from the time a claim for the said articles so lost, broken or damaged shall be made. In case the said common carrier shall not pay or refuse to pay said claim for said loss, breakage or damage as set out in this section within the sixty days therein provided for, then said common carrier shall be liable for the sum of fifty dollars for each offense as penalty, in addition to the amount of said loss or damage, to be collected by the claimant in any court having jurisdiction of the same." The title of the act of 1903, p. 81, is, "An act to regulate the manner in which common carriers doing business in this state, shall adjust freight charges and claims for loss of or damage to freight." Section 2 thereof is as follows: "That every claim for loss of or damage to property while in the possession of such common carrier shall be adjusted and paid within forty days, in case of shipments wholly within this state, and within ninety days, in case of shipments from without this state, after the filing of such claim with the agent of such carrier at the point of destination of such shipment: provided, that no such claim shall be filed until after the arrival of the shipment or of some part thereof at the point of destination, or until after the lapse of a reasonable time for the arrival thereof. In every case, such common carrier shall be liable for the amount of such loss or damage, together with interest thereon from the date of the filing of the claim therefor until the payment thereof. Failure to adjust and pay such claim within the periods respectively herein prescribed shall subject each common carrier so failing to a penalty of fifty dollars for each and every such failure, to be recovered by any consignee or consignees aggrieved, in any court of competent jurisdiction: provided, that unless such consignee or consignees recover in such action the full amount claimed, no penalty shall be recovered, but only the actual amount of the loss or damage, with interest as aforesaid: provided, further, that no common carrier shall be liable under this act for property which never came into its possession, if it complies with the provision of section 1710, vol. 1, of the Code of Laws of South Carolina, 1902." Section 5 (page 82) of the act is as follows: "That all acts or parts of acts inconsistent with this act be, and the same are hereby, repealed." The provisions of section 1711 make the common carrier...