McMeekin v. Southern Ry. Co.
| Citation | 64 S.E. 413,82 S.C. 468 |
| Parties | McMEEKIN v. SOUTHERN RY. CO. |
| Decision Date | 15 April 1909 |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Fairfield County.
Action by H. A. McMeekin against the Southern Railway Company. Judgment for plaintiff. Defendant appeals. Reversed and remanded for new trial.
J. E McDonald, for appellant.
Ragsdale & Dixon, for respondent.
The plaintiff, H. A. McMeekin, in the latter part of July, 1906 through W. R. Rabb & Co., in Winnisboro, S. C., ordered from a firm in Atlanta, Ga, a sawmill outfit. Upon arrival of the machinery at Rockton, S. C., plaintiff's station, it was discovered that material parts, a husk frame and pulley, were missing. On 4th August plaintiff gave notice to Estes defendant's agent at Rockton, of special damage accruing to his business because of the delay, and, after waiting about 10 days, ordered another husk frame and pulley. The missing portion of the first shipment never arrived, and the second consignment was not received until 6th September. Plaintiff brought this action for the value of the lost husk frame and pulley, and for special and punitive damages for the loss incurred. On defendant's motion the trial judge granted a nonsuit as to punitive damages. Defendant's counsel admitted liability for $77, the value of the lost portions of the machinery first shipped, and the court submitted to the jury the issue of special damages. The jury brought in a verdict of $617 for the plaintiff, and the defendant appealed.
The appeal is based upon the alleged errors of the circuit court in admission of testimony, in the charge to the jury, and in the refusal of motions for nonsuit, for direction of a verdict, and for a new trial. For convenience the numerous exceptions, as far as possible, will be considered together.
The exceptions taken to the admission in evidence of the alleged bill of lading and the written notice to defendant of plaintiff's special loss because of delay are without merit. The paper introduced as the bill of lading had been recognized as valid by the defendant's agent at Rockton, for upon its presentation he had turned over to the plaintiff such of the goods set out therein as had arrived. A bill of lading is in form nothing more than a receipt for freight, issued to the consignor by the carrier, containing the contract of shipment. The paper here introduced was of the same effect as a regular printed bill of lading; for, in addition to being a receipt, it contained this specification, "As per conditions company's bill of lading," which supplied the essential that a mere receipt might lack. Dunbar v. So. Ry., 62 S.C. 414, 40 S.E. 884. The paper purporting to be the notice to defendant of special damages to plaintiff was only a copy; but it was identified by defendant's agent; and, upon the failure of the railway company to produce the original, it was admissible. Beaty v. So. Ry. Co., 80 S.C. 527, 61 S.E. 1006.
The exception "that the alleged bill of lading was issued to Rabb & Co., and there was no indorsement thereon, which was necessary to give the plaintiff herein a right of action on said alleged bill of lading," was one taken to the refusal of the nonsuit. The general rule of law is that the delivery of the bill of lading by the person who, according to the terms of the bill, is entitled to the goods will transfer his title. 6 Cyc. 426. Appellant cites no authority or provision of the contract to show that actual indorsement is necessary to pass the title of the consignee in a bill of lading to a third party. But were this the rule, the fact that defendant's agent recognized the plaintiff's right to the goods under the bill of lading, in absence of indorsement to him, would be some evidence to go to the jury of waiver of such a requirement. Furthermore, the issuance of a voucher for $77 to plaintiff, which was never cashed, and was in evidence, the value of the lost machinery, was evidence that the railway company recognized its liability to the plaintiff, McMeekin, for its breach of contract of shipment. The exception setting forth the absence of any contractual relation between the plaintiff and the carrier is also overruled.
The appellant contends that this is not a case where special damages could be allowed, and the numerous exceptions stating this contention will be considered together. Defendant earnestly urges that there was no notice of special damages given at the time of shipment, and hence it could not be held liable for such loss accruing to plaintiff because of delay. Plaintiff admitted that he claimed special damages only from the time when he notified the defendant's agent of such loss, subsequent to the...
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