National Bank of Savannah v. Southern Ry., Carolina Division

• Citation: 91 S.E. 972,107 S.C. 28
• Decision Date: 22 March 1917
• Docket Number: 9652.
• Parties: NATIONAL BANK OF SAVANNAH v. SOUTHERN RY., CAROLINA DIVISION.
• Court: South Carolina Supreme Court

91 S.E. 972

107 S.C. 28

NATIONAL BANK OF SAVANNAH v. SOUTHERN RY., CAROLINA DIVISION.

No. 9652.

Supreme Court of South Carolina

March 22, 1917

Appeal from Common Pleas Circuit Court of Kershaw County; A. W Holman, Special Judge.

Action by the National Bank of Savannah against the Southern Railway, Carolina Division. Judgment for defendant, and plaintiff appeals. Affirmed.

Garrard & Gazan, of Savannah, Ga., and McCullough, Martin & Blythe of Greenville, for appellant.

B. L Abney and Frank G. Tompkins, both of Columbia, for respondent.

WATTS J.

This is an action of plaintiff against the defendant for $13,094.04 and interest at 7 per cent. per annum from January 6, 1911. The defendant answered denying the material allegations of the complaint. At that time there was pending in the United States Court for the District of South Carolina an action by the same plaintiff against the Kershaw Oil Mill and Lancaster Oil Company, which action was based on the same facts set out in the complaint herein. This case in the United States court after protracted litigation resulted in the plaintiff's finally obtaining judgment on January 29, 1913, for the sum of $11,416.58, which was paid on April 3, 1914, at that time amounting to $12,353.37.

The defendant after this judgment was paid filed a supplemental answer to the complaint in this case and alleged and sets up as a bar to this action the proceedings in the federal court, alleges payment of the judgment, and pleads the recovery and satisfaction of this as a bar to this action, and sets up as another defense that the claim is barred because of the fact that it was not filed within four months prescribed by the bills of lading. The defendant demurred to these two defenses, and the cause was heard by Special Judge W. A. Holman, at the summer term of court, 1914, for Kershaw county, who sustained the demurrer relative to the time of filing the claim and overruled the demurrer as to the plea of the defendant that the payment of the judgment obtained in the federal court was a bar to the action.

From this order both plaintiff and defendant appeal, and the questions raised by the exceptions present two questions for the determination of this court. The first is:

"Under the facts of this case is the judgment and satisfaction thereof in the case of plaintiff against the Kershaw Oil Mills in the federal court a complete bar to this cause of action?"

We will consider this question. No one is entitled but for one full compensation for a violation of his rights.

The plaintiff insists that his action against the oil mill was an action in tort, and against the defendant is an action in contract. We think under the facts in the case that this is a fine-drawn distinction. The erroneous statement placed in the bills of lading by the oil mill companies and the defendant railroad constituted a tort. It was by reason of this erroneous statement alone that the bank was induced to pay out money for the bills of lading and lost its money. The preliminary question to be determined is whether this action is for breach of contract or a tort. The action is for an alleged violation of duty on the part of the defendant in negligently issuing a bill of lading purporting to be cotton when it was "linters." The alleged violation of duty on the part of the defendant was a tort. The action is for a tort....