Kelly v. Southern Ry. Co.
| Decision Date | 23 November 1909 |
| Citation | 66 S.E. 198,84 S.C. 249 |
| Parties | KELLY v. SOUTHERN RY. CO. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court, of Greenville County; J. W De Vore, Judge.
Action by S. R. Kelly against the Southern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.
Cothran Dean & Cothran, for appellant. Haynsworth, Patterson & Blythe, for respondent.
This is an appeal from a judgment in favor of plaintiff for damages to part of a car load of flour by contamination with kerosene oil while in the hands of the carrier. The exceptions impute error to the court below: (1) In refusing motions for nonsuit and new trial on the ground that there was no evidence that the flour was damaged while in defendant's possession. (2) In refusing a new trial because there was no evidence of waiver of the stipulation in the bill of lading that claim for damage must be filed within 30 days after delivery to consignee. (3) In charging that the measure of damages was the value of the flour at destination, when the bill of lading provided that it should be the value at the time and place of shipment.
When it appears that a carrier received a consignment in good order and delivered it in bad order, a presumption arises that it was damaged in the hands of the carrier. Cooper v. Railway, 78 S.C. 82, 58 S.E. 930. The bill of lading acknowledged receipt of the flour by defendant "in apparent good order." While "apparent good order" would ordinarily refer to the outward appearance of the goods, or to their receptacles, and not to hidden or concealed conditions, in this case there was testimony that when the flour was delivered to the plaintiff the sacks were stained with oil spots, plainly visible, and the whole shipment smelled strongly of oil. If it was in that condition when received, the carrier would scarcely have receipted for it in "apparent good order." Besides, there was testimony that the plaintiff's and two other consignments of flour, of the same brand and from the same lot, were delivered to defendant at the same time, out of the same warehouse, and shipped in the same car; that a little oil in a car of flour will contaminate the whole car; that the two other consignments, one for Liberty and one for Pickens, were delivered 10 or 12 days before the plaintiff's consignment; and that neither of the others was contaminated. This evidence certainly tended to show that the flour was damaged while in defendant's possession.
The plaintiff testified: That, as soon as he discovered the condition of the flour, he notified defendant's agent and defendant's claim agent came and examined it, and told him to dispose of it to the best advantage, and defendant would make it right with him, and promised to let plaintiff hear from him right away, but never did so, and that he was nearly a year getting rid of the flour; that at first he thought he could dispose of it at cost and filed a claim, made out by defendant's agent, for $127, but afterwards discovered that it was worse contaminated...
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