Piero v. Southern Express Co.

• Decision Date: 07 March 1916
• Docket Number: 9314.
• Citation: 88 S.E. 269,103 S.C. 467
• Parties: PIERO v. SOUTHERN EXPRESS CO.
• Court: South Carolina Supreme Court

88 S.E. 269

103 S.C. 467

PIERO v. SOUTHERN EXPRESS CO.

No. 9314.

Supreme Court of South Carolina

March 7, 1916

Appeal from Common Pleas Circuit Court of Sumter County; T. J Mauldin, Judge.

Action by H. V. Piero against the Southern Express Company. From a judgment for plaintiff, defendant appeals. Affirmed.

The complaint was as follows:

That at the times hereinafter mentioned, and for some time prior thereto, the plaintiff was engaged in the show business, and that to carry on his show business, it was absolutely necessary to have a piano for the purpose of having music. That he would go from small town to small town usually for a week's engagement at each place. That he had an engagement at Cameron, S. C., commencing Monday December 30, 1913. That at other points he had been able to rent a piano. That it was cheaper and less troublesome to rent a piano at the different points, if possible to do so, than to own and ship one from place to place. That when he reached Cameron, S. C., he tried to rent a piano, but found that it was impossible to do so, and, it being practically impossible to carry on his show successfully without a piano, he immediately came to Sumter on Monday, December 30th and bought one to take to Cameron at once to be used in said show.

That he came to Sumter on Monday, December 30, 1913, bought a piano, and took the same to the depot and delivered it to the agent of the Southern Express Company, to be taken by express to Cameron, S.C. That said agent delivered to him a receipt for said piano, and that at the time of delivery of the said piano to the agent of the defendant at Sumter, S. C., the plaintiff notified him of the necessity to have said piano carried to Cameron by the first express. He notified said agent that his show was then at Cameron, S. C.; that he had been unable to rent a piano there, and that he had been forced to come to Sumter and buy this piano; that his show was there, and he was unable to carry out his engagement until he could get said piano there; that his loss would be considerable each day until he could get said piano; that he would lose at least $200, or more per day until he got said piano; that he wanted it to go out by the first express; that he fully informed the agent of the defendant of the business in which he was engaged, the necessity to have said piano, the loss he would sustain without same, and in general notified him of all of the circumstances connected therewith, whereupon the agent promised the plaintiff that said piano would be shipped by the express which would leave Sumter, S. C., for Cameron, early Tuesday morning, and would reach Cameron in the early part of the morning. That while at said depot the plaintiff saw the agents of the defendant roll said piano to the car door, preparatory to loading the same.

That when said express car reached Cameron on Tuesday morning, the plaintiff went to meet it for the purpose of getting said piano to take to his show, but found out that the piano had not arrived, whereupon he inquired of the agent the cause, and he was informed that the piano had been left at Sumter. That when they went to load the same, they found it too heavy for the few men they had present to load it with. The plaintiff again notified this agent of what he had notified the agent at Sumter, of the importance of having this piano, and of the loss he would sustain from day to day until he did get it. That he did everything he could to get the defendant to have said piano brought on to Cameron. That he saw the defendant's agent from time to time at Cameron, notified him of the importance of having said piano, notified him of the loss he would sustain, but notwithstanding all of this, the defendant kept said piano at Sumter until Friday, January 3, 1914, and did not bring it to Cameron until Friday night, January 3, 1914, which actually prevented plaintiff from running his show in the usual manner, at a loss of $200 or more per day.

That between the time the plaintiff delivered said piano to the defendant at Sumter and the time they delivered it to him at Cameron, S. C., considerable rain had fallen and the weather was damp and bad; that the defendant had left said piano out in the open air at Sumter, not under a shed, had allowed the rain to fall upon same, and when it was delivered at Cameron, it was very wet and in a very bad and damaged condition, all of which was caused on account of the negligent, willful, and wanton acts of the defendant and in utter disregard and violation of the plaintiff's rights.

That notwithstanding all of the facts herein alleged in connection with the expressing of said piano and the necessity of having the same promptly delivered to the plaintiff at Cameron, S. C., the defendant, in utter disregard of plaintiff's rights and in willful and wanton violation of the same, held said piano out in the rain at Sumter until Friday, January 3, 1914, all to the damage of the plaintiff in the sum of $2,999.

Wherefore the plaintiff demands judgment against the defendant for the sum of $2,999, and for the costs of this action.

Mark Reynolds, of Sumter, for appellant.

L. D. Jennings and R. D. Epps, both of Sumter, for respondent.

GARY C.J.

This is an action for damages, alleged to have been sustained by the plaintiff through the wrongful acts of the defendant, resulting in injury to a piano, and delay in its shipment from Sumter, S. C., to Cameron, S.C. The facts out of which the controversy arose are alleged in the complaint, which will be reported. The answer of the defendant was a general denial. The jury rendered a verdict in favor of the plaintiff for $200, actual damages, and $500 punitive damages; and the defendant appealed.

The first and second exceptions are as follows:

"Because it is respectfully submitted his honor erred in allowing the plaintiff, Piero, to testify, over objection of the defendant, as to what his average earnings from his show were, in other towns, approximately the same size as Cameron, when he had a piano in his show, as a basis for the jury to award him special damages. Whereas his honor should have ruled out the testimony as highly speculative, in that it was dependent upon a great many conditions on which the witness necessarily gave only his opinion, which opinion was incompetent.

(2) Because his honor erred in allowing the plaintiff, Piero, to give his opinion as to conditions prevailing in other towns, and also the amount of the gross receipts for his show in Eutawville, a town which he did not believe was any larger than Cameron, as a basis on which the jury should award him special damages in this case. Whereas his honor should have ruled out the same on the ground that it was speculative and remote, and the opinion of the plaintiff, which was incompetent."

The record shows that the questions presented by these exceptions arose as follows:

"By Mr. Jennings: Q. I will ask this question: I want you to state to the court and jury your average earnings. I don't mean any special day or week, but I mean your average earnings in towns of approximately the same size as Cameron, and under the same conditions as existed in Cameron, when you had the piano.

Mr. Reynolds: That would be his opinion as to the condition, and I object on that ground.

Court: He can state the conditions. A. The week before I showed in Cameron was practically the same kind of week--in Eutawville, in a town I don't believe any larger than Cameron is, my gross receipts of the show was something over $1,000. Q. In one week? A. Yes, sir. Q. What were the gross receipts at Cameron? A. I don't know. They were not very much.

Mr. Reynolds: I object to that."

The appellant's attorney in his argument says:

"It was clearly error for his honor, in a case like this, to give this shrewd showman the reign to his imagination as to what his entire show would make, or could have made, at other times and other occasions in the past." It will be observed, however, that the ground of objection to the testimony was not that it would tend to prove the average earnings of the entire show, but simply on the ground that the testimony "would be the opinion of the witness as to the condition."

The second objection stated no ground whatever, and is therefore...