Matheson v. Southern Ry. Co.

• Decision Date: 22 February 1908
• Citation: 60 S.E. 437,79 S.C. 155
• Parties: MATHESON v. SOUTHERN RY. CO.
• Court: South Carolina Supreme Court

60 S.E. 437

79 S.C. 155

MATHESON v. SOUTHERN RY. CO.

Supreme Court of South Carolina

February 22, 1908

Appeal from Common Pleas Circuit Court, Fairfield County; Chas. G Dantzler, Judge.

Action by A. W. Matheson against the Southern Railway Company. Judgment for defendant, and plaintiff appeals. Affirmed.

T. M Cathcart, for appellant.

B. L Abney, for respondent.

WOODS J.

In this action the plaintiff, A. W. Matheson, seeks to recover of the Southern Railway Company $1,995 for the loss of two tons of fertilizer; the position taken being that the facts warrant the recovery of both special and punitive damages in addition to the value of the goods lost. The circuit judge directed a verdict for the defendant. The inquiry, then, is whether there was any evidence upon which a verdict for any amount in favor of the plaintiff could have been rendered.

These were the undisputed facts before the court: The plaintiff in March, 1905, bought of Springs & Shannon, merchants at Camden, two tons of Pocomoke guano, to be shipped to him at Ridgeway, paying them the purchase money, $32.36, in cash. Springs & Shannon immediately thereafter, on 24th March 1905, bought two tons of fertilizer from Pocomoke Guano Company, which company, as directed by Springs & Shannon, delivered the guano to the defendant railway company consigned to the plaintiff at Ridgeway, S.C. The guano company had no contract with the plaintiff, and sent the bill of lading, which named the plaintiff as consignee to Springs & Shannon. After shipment the plaintiff inquired for the guano a number of times at defendant's Ridgeway freight office, and informed the defendant's local agent of his intention to use it on his crop, and of the necessity for him to have it in time. The agent promised to send a tracer for the guano, and the evidence of the officers of the railway company that diligent effort was made to find and deliver the guano was undisputed. The plaintiff testified he waited on the guano until he was convinced, if it came at all, it would be too late for the use he wished to make of it, and then demanded and received back from Springs & Shannon the purchase price. The plaintiff further testified he was unable to procure guano after it became manifest this fertilizer would not be delivered, and that the yield of his land was far less than it would have been if he had been able to use the guano. After repayment to the plaintiff, Springs & Shannon returned the bill of lading to the Pocomoke Guano Company, and received credit on their books for the price of the guano. Thereupon the Pocomoke Guano Company demanded and received from the defendant railway company $32.36, the value of the goods at Norfolk.

There is no foundation for special damages. The evidence discloses nothing more than an ordinary shipment of fertilizer, with no notice to the carrier at the time it received the goods of any special use to which it was to be applied, or of such scarcity of fertilizer as to prevent the purchase of two tons of other guano by the plaintiff. Traywick v. Railway Co., 71 S.C. 82, 50 S.E. 549, 110 Am. St. Rep. 563; Wesner, etc., Co. v. Railway, 71 S.C. 211, 50 S.E. 789; Guess v. Railway Co., 73 S.C. 264, 53 S.E. 421; Strange v.

Railway Co., 77 S.C. 182, 57 S.E. 724. In McKerall v. Railroad Co., 76 S.C. 342, 56 S.E. 965, the following language from 6 Cyc. 450, is quoted with approval: "Subsequent notice, however, of the effect of the further delay after the goods should have been delivered may render the carrier liable for damages accruing after that time by reason of negligence in not tracing and finding the goods." Assuming that there was notice given of special emergency after the shipment, there was not a particle of evidence of negligence in not tracing and finding the goods. On the contrary, there was undisputed evidence of diligent and prompt effort to find and deliver. The case as to special damages therefore entirely fails. So far from there being evidence of reckless or willful disregard of plaintiff's rights or even indifference to them, all the testimony on the subject tended to show a loss by theft from the carrier or by some mistake, which the defendant after diligent effort could not account for. To allow punitive damages under such conditions would not only be unjust, but result either in bankruptcy to common carriers or such increase in freight rates as to impose an intolerable burden on the business of the country.

The remaining question is whether there was any evidence of actual damages recoverable by the plaintiff. The plaintiff it is true, paid in advance for two tons of Pocomoke guano, but the sellers undertook to deliver it to him at Ridgeway; and until delivery at...