Prescott v. Southern Ry. Co.

• Decision Date: 28 September 1914
• Docket Number: 8950.
• Citation: 83 S.E. 781,99 S.C. 422
• Parties: PRESCOTT v. SOUTHERN RY. CO.
• Court: South Carolina Supreme Court

83 S.E. 781

99 S.C. 422

PRESCOTT v. SOUTHERN RY. CO.

No. 8950.

Supreme Court of South Carolina

September 28, 1914

Petition for Rehearing Dismissed December 18, 1914.

Appeal from Common Pleas Circuit Court of Edgefield County; T. H Spain, Judge.

Action by W. E. Prescott against the Southern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

N George Evans, of Edgefield, and B. L. Abney, of Columbia, for appellant.

J. Wm Thurmond, of Edgefield, for respondent.

FRASER J.

This is an action against the defendant for loss by fire of certain boxes of shoes while in the defendant's possession. Thirteen boxes of shoes were shipped from Petersburg, Va., to the plaintiff at Edgefield, S.C. They arrived in Edgefield on the 23d day of June, 1913. On the following day the plaintiff's agent called at the depot for freight and, on account of the crowded condition of his wagon, took only four boxes. Plaintiff's agent paid the freight on all, but left nine boxes in the possession of the defendant to be called for later. On the morning of the 4th of July following, the warehouse of the defendant, with its contents including the shoes, burned down. The plaintiff demanded payment for the loss, which was refused. The plaintiff then brought this suit, alleging three causes of action. The first cause of action was against the defendant as common carrier, the second as warehousemen, and the third was for the penalty for nonpayment. Judgment was for the plaintiff, and the defendant appealed.

There are several exceptions, but the appellant argues but two questions.

1. The defendant claims that, inasmuch as this is an interstate shipment, the federal statute governs. This question does not legitimately arise in this case, for the reason that the appellant moved for a nonsuit on the ground that:

"The evidence here shows that this freight arrived here on the 23d of June, and that the freight was paid and receipted for by the agent of Dr. Prescott. He came for it and paid the freight, and I submit that where a common carrier delivers freight in good order and has it in its depot and paid for, then its liability as common carrier ceases."

The court reserved its decision on that question, and before it was announced, the plaintiff withdrew the cause of action as common carrier and also the cause of action for the penalty. It, therefore, being conceded in the circuit court that the contract of carriage was ended and the appellant held the goods by a separate contract, the question as to appellant's liability as common carrier and the federal statute under which it might have arisen is not before this court, and the only question argued which we can consider is the question as to warehouseman.

2. The general rule as to the liability of warehouseman in...