Poliakoff v. American Ry. Express Co.

• Citation: 105 S.E. 745,115 S.C. 350
• Decision Date: 31 January 1921
• Docket Number: 10558.
• Parties: POLIAKOFF v. AMERICAN RY. EXPRESS CO.
• Court: United States State Supreme Court of South Carolina

105 S.E. 745

115 S.C. 350

POLIAKOFF v. AMERICAN RY. EXPRESS CO.

No. 10558.

Supreme Court of South Carolina

January 31, 1921

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

Action by S. Poliakoff against the American Railway Express Company. From a judgment for plaintiff, defendant appeals. Affirmed.

The exceptions herein are as follows:

(1) That his honor erred, it is respectfully submitted, in refusing defendant's motion for a directed verdict for any amount in excess of $50, on the ground that under the express receipt the liability of the defendant company, in case of loss, was limited to $50, and no more; the amount being based upon the rate charged and weight.

(2) That his honor erred, it is respectfully submitted, in failing to charge the jury at the request of the defendant as follows: "I charge you, gentlemen of the jury, that if the plaintiff is entitled to recover in this case, that he cannot recover an amount in excess of $50, for the reason that he agreed to this valuation at the time the shipment was turned over to the express company by failing to have the agent insert in the express receipt a greater value than $50, and in not paying an increased rate for a higher valuation." In that the amount to be recovered was limited by the express receipt in case of loss and was the contract between the parties.

(3) That his honor erred, it is respectfully submitted, in allowing the witness Poliakoff to answer the following question over the objection of defendant's attorney:

"Q. At the time that you sent it back did you tell them what was in the package?

Mr. Blatt: If the court please, the express receipt is the best evidence.

Witness: It was marked on the package to the Knickerbocker Clothing Company and that it meant it was clothing, of course.

Mr. Blatt: We object to the witness stating all of that. The express receipt is the best evidence and we think the court ought to make counsel produce it. We object to it.

The Court: Go ahead, Mr. Ninestein, we will strike it out later if we find it is not proper."

In that it attempted to allow the plaintiff to testify as to the valuation of the package, and allow the plaintiff to vary and contradict the terms of the express receipt, which was the only contract between the parties.

(4) That his honor erred, it is respectfully submitted, in allowing the witness Poliakoff to testify as to the value being placed on the package at the time it was delivered to a negro porter, employed by the agent as a driver, for shipment, in that it attempted to vary and contradict the terms of the express receipt and in attempting to place a value on the package other than that which was stated in the express receipt.

(5) That his honor erred, it is respectfully submitted, in charging the jury as follows: "The plaintiff must make out his case by the preponderance or greater weight of the testimony. It is on the express company to show that the agreement was made. That is the burden on them." In that it misled the jury and made them believe that under the law the express company, defendant in this case, would have to establish this agreement by the greater weight or preponderance of the testimony, when as a matter of fact the burden of proof was upon the plaintiff to establish by the greater weight or preponderance of the testimony that the valuation was the amount as alleged by them in their complaint.

(6) That his honor erred, it is respectfully submitted, in failing to direct a verdict for the defendant for any amount in excess of $50, in that under the law and testimony as was had at the trial of the case, the defendant was entitled to a direction of a verdict for any amount other than that covered by the contract between the parties, which in this case was the express receipt, and which

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