Pastime Amusement Co. v. Southeastern Exp. Co.

• Decision Date: 11 February 1936
• Docket Number: 14224.
• Citation: 186 S.E. 283,181 S.C. 203
• Parties: PASTIME AMUSEMENT CO. v. SOUTHEASTERN EXPRESS CO.
• Court: South Carolina Supreme Court

186 S.E. 283

181 S.C. 203

PASTIME AMUSEMENT CO. v. SOUTHEASTERN EXPRESS CO.

No. 14224.

Supreme Court of South Carolina

February 11, 1936

Appeal from Court of Common Pleas of Charleston County; A. L Gaston, Judge.

Suit by the Pastime Amusement Company against the Southeastern Express Company. Judgment for the plaintiff, and defendant appeals.

Affirmed.

Nath. B. Barnwell, of Charleston, for appellant.

J. C Long, of Charleston, for respondent.

CARTER Justice.

This suit by Pastime Amusement Company, as plaintiff, against the defendant, Southeastern Express Company, was commenced in the court of common pleas for Charleston county in November 1930. The action is to recover the sum of $3,000, actual and punitive damages, for the alleged failure to deliver a moving picture film in time to be shown as advertised on Labor Day, 1930, and the two following days, at the Gloria Theater in Charleston. In its answer the defendant interposed a general denial, and further set up the defense that the shipment in question was transported by it in interstate commerce, and that, under the contract of shipment of the said moving picture film, and the acts of Congress, and the rules and regulations of the Interstate Commerce Commission, and the tariff and regulations of the defendant, filed and published, its liability, if any, was limited to the sum of $50, by reason of the terms of the receipt and bill of lading issued by the defendant for the said shipment. The defendant further alleged, in its answer, that all rights and liabilities in connection with the said shipment were governed by the acts of Congress, bill of lading, and the common law as enforced in the federal court, and further alleged that no punitive damages were recoverable in the case.

The case was tried in said court before his honor, Judge A. L. Gaston, and a jury. After overruling defendant's motions for a nonsuit and for a directed verdict, the trial judge submitted the case to the jury on the issue of actual damages; punitive damages being eliminated. The jury rendered a verdict for the sum of $1,500, and, from the judgment entered thereon, the defendant, pursuant to due notice, appealed to this court.

The errors imputed to the trial judge are set forth under twenty-five exceptions, but counsel for the appellant states in his brief presented to this court that the issues involved may be considered under the following questions:

"1. Is the liability of the defendant to be determined by the Carmack Amendment (U.S.Code, title 49, c. 1, § 20 (11), [49 U.S.C.A. § 20(11) note] or by the common law?

2. Was plaintiff's right of action governed by the contract of shipment made by the shipper in Jacksonville, Florida?

3. Was the amount which plaintiff could recover in this action limited to fifty ($50.00) Dollars?

4. Was the evidence which was admitted over objection, in support of the allegations claiming special damages competent?

5. Was there any competent evidence of any notice being given the defendant at the time of the contract of shipment of circumstances from which special damages might reasonably be expected to result?

6. Should a verdict have been directed in favor of defendant on the claim for special damages?

7. Was the evidence in support of the claim for anticipated profits speculative, remote and inadmissible?"

For the purpose of showing the nature and extent of the plaintiff's alleged injury, it is well to refer to the complaint.

The plaintiff is a corporation under the laws of South Carolina, and, according to the allegations set forth in the complaint, was, at the times involved, engaged in business in the city of Charleston, this state, conducting and operating theaters, and displaying motion picture films, having been engaged in and conducting said business at said place for many years, including the operation of the Gloria Theater. It is admitted that the defendant, as well as the plaintiff, is a corporation, and the defendant is, and was at the time involved herein, engaged in the business of a common carrier of wares, merchandise, etc., for hire, operating on railroad lines, including lines in the states of Florida, Georgia, South Carolina, and North Carolina, and as such common carrier is charged with the duty of speedy, safe, and sure delivery of goods, etc., intrusted to its care and charge; that the defendant holds itself out to the public for the said purpose. The plaintiff further alleges, in effect, that the defendant charges a higher rate than is charged by the ordinary common carrier, such as freight trains on railroads, and owes to its patrons a higher duty to transport with safety and dispatch any goods intrusted to its care than is expected and required of the ordinary common carrier referred to, and the defendant company "advertises and represents and holds out to the general public that it provides quick, sure, speedy and efficient means of transporting articles from one city or state to another." In this connection we call attention to the following allegations set forth in the plaintiff's complaint:

"That in the past the Plaintiff company has had numerous moving picture films shipped to or sent to it from various points throughout the United States by means or through the Defendant Express Company; that motion picture films are such articles as are recognized by the defendant company that speed in transportation is essential, it being known to the defendant company that if the said picture is not delivered thus, the show cannot go on and a loss will naturally follow to the exhibitor of the said pictures; that, on August 29, 1930, there was delivered to the authorized agents of the defendant company in Jacksonville, Florida, certain moving picture films which the defendant agents agreed to transport and deliver to the Gloria Theater in Charleston, South Carolina; that the films were properly addressed to the Gloria Theater, Charleston, South Carolina; that the films delivered to the defendant company's agent, in fact, were prints of the moving picture known as 'Anybody's War,' which picture is considered well known and extensively advertised as one of the most popular pictures of the year 1930; that the said moving picture, 'Anybody's War,' had been advertised by the Plaintiff to be displayed at the Gloria Theater, Charleston's premier and most popular show house, on September 1st, 2nd, and 3rd, 1930; that although the said picture was delivered to the defendant's agent at Jacksonville, Florida, on August 29, 1930, and was accepted by the agent for the defendant company for immediate delivery to the Gloria Theater in Charleston, South Carolina, and should have been and could have been, by the reasonable exercise of diligence, delivered to the Gloria Theater on August 30, 1930, by the proper, efficient, and careful handling of the same by the defendant company, its agents or servants, that the said picture was not even delivered to the plaintiff, the consignee thereof, until September 3rd, too late to make a practical showing of the picture possible, and that the consignee thereof refused to accept the delivery of the said picture; that when the picture had not been delivered on the morning of September 1st, 1930, the plaintiff, through its representative and agent, immediately brought the matter to the attention of the agent of the defendant company at Charleston, South Carolina; that the plaintiff did everything possible to locate the films but to no avail; that as a result of the delay in delivering the films to the Gloria Theater in Charleston, South Carolina, the Gloria Theater had to remain absolutely closed during the entire holiday of Labor Day, September 1st, and the plaintiff was deprived of the revenue and profits from the display of 'Anybody's War,' one of the year's most popular pictures for September 1st, 2nd, and 3rd; that the plaintiff was caused to lose the money it had expended for advertising the said picture; that the plaintiff was put to great unnecessary trouble and inconvenience, unto the plaintiff's loss in the sum of Three Thousand ($3,000.00) Dollars; that as the plaintiff has been informed and believes the said moving picture 'Anybody's War,' was sent and delivered to Charlotte, North Carolina, by the defendant company, its agents or servants, although the package was plainly marked and addressed to the

...