Murray v. Atlantic Coast Line R. Co.

• Citation: 93 S.E. 387,108 S.C. 88
• Decision Date: 06 September 1917
• Docket Number: 9806.
• Parties: MURRAY v. ATLANTIC COAST LINE R. CO.
• Court: United States State Supreme Court of South Carolina

93 S.E. 387

108 S.C. 88

MURRAY v. ATLANTIC COAST LINE R. CO.

No. 9806.

Supreme Court of South Carolina

September 6, 1917

Appeal from Common Pleas Circuit Court of Charleston County; I. W Bowman, Judge.

Action by J. O. Murray against the Atlantic Coast Line Railroad Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Ficken & Erckmann, of Charleston, for appellant.

Mordecai & Gadsden & Rutledge, of Charleston, and Douglas McKay, of Columbia, for respondent.

HYDRICK J.

Action for damages for alleged negligent delay in the transportation and delivery of a shipment of beans, consigned by plaintiff at Charleston, S. C., to S. H. & E. H. Frost, commission merchants, of the city of New York.

The consignment was received by defendant on May 26, 1914, and arrived in New York, over the lines of the Pennsylvania Railroad Company, at 2:25 a. m., on the 29th, in time to be delivered for the market of that day, under ordinary conditions; but it was not delivered until Monday, June 1st. The undisputed evidence is that there was no unreasonable delay in transportation.

Defendant undertook to excuse delay in delivery by proving that, on account of an unusual congestion of perishable freight ahead of plaintiff's shipment, it was impossible to unload the cars containing it on the morning of the 29th; that it could not be delivered on the 30th, because that was a legal holiday, nor on the 31st, because that was Sunday.

Defendant therefore denied the charge of negligence, and set up as a defense a stipulation in the bill of lading to the effect that claims for loss or damage shall be made promptly in writing to the agent at point of delivery, and, if such notice is delayed more than ten days thereafter, no carrier shall be liable for such claims.

Plaintiff relied upon waiver and estoppel; the ground being that defendant received and considered his claim on its merits when he filed it, on October 1, 1914, and refused it on the ground that there was no negligence in handling the shipment and did not invoke the time limit of the stipulation, until it was set up in the answer.

The trial court (the civil and criminal court of Charleston) refused defendant's motion for a directed verdict and submitted the issue of waiver to the jury. From verdict and judgment for plaintiff, defendant appealed to the circuit court, which reversed the judgment, holding that the verdict should have been directed for defendant.

Plaintiff brings the case here on appeal, and asks for reversal on four grounds:

"(1) It was right for the trial court to send the issue of waiver to the jury."

That ground is settled against appellant by the case of Dean v. Railway, 107 S.C. 25, 91 S.E. 1042.

"(2) The stipulation was matter of defense, and the burden was on defendant to prove that due notice of the claim was not given to the agent of the Pennsylvania Railroad Company, the delivering carrier, at the point of...