Mauldin v. Seabd. Air Line Ry

• Decision Date: 14 November 1905
• Citation: 73 S.C. 9,52 S.E. 677
• Parties: MAULDIN. v. SEABOARD AIR LINE RY.
• Court: South Carolina Supreme Court

52 S.E. 677

73 S.C. 9

MAULDIN.

v.SEABOARD AIR LINE RY.

Supreme Court of South Carolina.

Nov. 14, 1905.

1. Pleading—Demurrer—Second Trial.

Where a case is tried on the merits, it sufficiently shows that the judge who tried it overruled a demurrer, on the ground that the complaint did not state a cause of action, so that a succeeding judge on a second trial cannot consider it.

2. Pleading—Objections—Waiver.

Defendant cannot complain of evidence received in support of allegations in the complaint to which he did not object.

[Ed. Note.—For cases in point, see vol. 39, Cent. Dig. Pleading, § 1433.]

3. Evidence—Best and Secondary.

In an action for failure to furnish cars to plaintiff on which to ship goods ordered, evidence of verbal orders for the goods is not objectionable, because they were subsequently followed by written orders to the same effect.

[Ed. Note.—For cases in point, see vol. 20, Cent. Dig. Evidence, § 517.]

4. Same—Opinion—Damages.

In an action for failure to deliver cars to a manufacturer in which to ship special orders, the item of damage must be shown, and plaintiff cannot estimate the amount in a lump sum.

[Ed. Note.—For cases in point, see vol. 20, Cent. Dig. Evidence, § 2289.]

5. Carriers — Failure to Deliver Cars — Punitive Damages.

Where a carrier is unable to furnish cars because of an unprecedented amount of business, such failure is no ground for punitive damages.

6. Same—Defenses.

A shipper, in the absence of special contract, is not entitled to damage for failure to carry his freight, caused by a sudden press of business which could not have been reasonably anticipated.

Appeal from Common Pleas Circuit Court of Hampton County; Klugh, Judge.

Action by Joab Mauldin against the Seaboard Air Line Railway. Judgment for plaintiff. Defendant appeals. Reversed.

Lyles & McMahan and Jas. W. Moore, for appellant.

Lyles & McMahan, for respondent.

WOODS, J. The plaintiff alleged he was engaged in the manufacture of lumber at Duke's siding, on the line of defendant's railroad, "solely on bills and orders for special sizes, lengths, and quality, and to be delivered to plaintiff's customers and to markets aforesaid under contract at and by special and stated times, " and although the defendant was notified of the character of his business and of his contracts for lumberbeing overdue, and although frequent demands were made for cars to ship lumber on these contracts, yet the defendant willfully, maliciously, wantonly, and negligently, failed and refused to furnish the cars required. The items of damage set up were: (1) Expense and inconvenience of piling the accumulating lumber; (2) depreciation of value of lumber; (3) cancellation of orders making sales necessary at reduced price; (4) loss of custom. On the first trial of the cause, plaintiff obtained a verdict for $1,400, but a new trial was ordered by his honor, Judge Aldrich, unless the plaintiff would remit all the recovery above $600, and plaintiff elected to take a new trial rather than remit $800 of his verdict. On the second trial before Judge Klugh, the verdict was for $850, and judgment was entered accordingly.

1. The first question made by the appeal is whether Judge Klugh was right in finding, as a matter of fact, that Judge Aldrich, at the former trial, had overruled the written demurrer submitted to him, on the ground that the complaint failed to state facts sufficient to constitute a cause of action; and as a matter of law that this decision of Judge Aldrich was binding on him, though not reduced to writing and signed. Inasmuch as it was admitted by counsel that the demurrer was presented to Judge Aldrich, and he subsequently proceeded with the trial of the cause, it necessarily follows he overruled the demurrer. It is true, the decision as to the demurrer should have been given in writing and signed, as required by section 289 of the Code of Procedure. But an order of this kind does not dispose of the cause, and no formal judgment is entered on it; and hence, if counsel do not request that it be reduced to writing, the requirement of the statute may well be deemed waived. After the demurrer had been overruled by Judge Aldrich, it could not again be considered by Judge Klugh. Turner v. Association, 51 S. C. 33, 27 S. E. 947.

2. The plaintiff having alleged, in his complaint loss of custom as an item of damage arising out of defendant's failure to furnish cars, and no motion having been made to strike out this allegation, the defendant cannot be heard to complain that evidence was introduced on this subject. Martin v. Railway Co., 70 S. C. 8, 48 S. E. 616.

3. There was no error in refusing the motion to strike out plaintiff's evidence as to the verbal orders for lumber received by him, made on the ground that the written orders following the verbal were the best evidence of the orders which plaintiff alleged he was prevented from filling. Most probably these verbal orders at the time they were received, became the main factors which influenced the conduct of plaintiff's business rather than the subsequent confirmatory written orders.

4. The sixth exception alleges error in allowing the plaintiff to give in a lump sum his estimate of the aggregate damages sus tained by reason of the...