Simons-Mayrant Co. v. Atlantic Coast Line R. Co.

• Decision Date: 21 July 1913
• Citation: 207 F. 387
• Court: U.S. District Court — District of South Carolina
• Parties: SIMONS-MAYRANT CO. v. ATLANTIC COAST LINE R. CO.

207 F. 387

SIMONS-MAYRANT CO. v. ATLANTIC COAST LINE R. CO.

United States District Court, D. South Carolina.

July 21, 1913

Whaley & Bissell and Mitchell & Smith, all of Charleston, S.C., for plaintiff.

W Huger Fitz Simons, of Charleston, S.C., for defendant.

CONNOR District Judge.

This is an action for the recovery of special damages alleged to have been sustained by reason of the delay in shipment of, and injuries sustained by, a steam shovel delivered to defendant at Lakeland, Fla., for transportation and delivery to plaintiff at Ft. Lawn, or Great Falls, S.C. The plaintiff alleges that, prior to the receipt for shipment, defendant was notified that the shovel was to be used by plaintiff in performance of a contract which it had theretofore entered into with the Southern Power Company at Great Falls, S.C. that prompt shipment and delivery was necessary to enable plaintiff to perform the work (excavation of a canal); that the contract of shipment was entered into by defendant with notice that special damage would be sustained if the shovel was not promptly shipped and delivered; that defendant negligently delayed the shipment and delivery and so negligently handled said shovel that it was injured, etc. Defendant denied that, at the time of, or prior to, said shipment, it had notice of the contract existing between plaintiff and the Southern Power Company or the purpose for which the shovel was to be used at Great Falls. It further denied negligent delay in the shipment and delivery of the shovel. It admitted that the shovel was, while in transit derailed at Savannah, Ga., and injured, but alleged that it was repaired, put in as good condition as when received by it, and delivered to plaintiff at Great Falls in such good condition. The cause was, by consent, referred to Mr. George H. Moffett, as special master, to hear the evidence and report his conclusions of fact and of law to the court, with the right of either, or both, parties to file exceptions, etc. The special master filed his report, to which both parties filed exceptions.

The master finds:

'That verbal notice was given, before the shipment, to the defendant to the effect that Simons-Mayrant Company needed the shovel for use on a contract under which they were liable for a penalty of $50 a day for each day beyond the time limit provided for in the contract.'

Defendant excepts to this finding of fact. Exceptions 1 to 7, inclusive, are directed to this phase of the case. The master sets out in his report the evidence which he deems relevant to this issue, being the testimony of Mr. S. Lewis Simons, secretary and treasurer of plaintiff company, and Mr. W. E. Renneker, commercial agent of defendant. Their testimony is contradictory and irreconcilable, except upon the theory that the memory of one of them has failed him. It is found by the master, and conceded by counsel, that both are men of high character for truth and integrity. Mr. Simons says that, several days before the shovel was shipped, he stated to Mr. Renneker that:

'We had bought this shovel to be used on a contract which we had for the Southern Power Company, Ft. Lawn; that it was a matter of vital importance for us to get the shovel; that our work was dependent on it; that there was a demurrage of $50 a day, and we would get $50 a day if we got through ahead of time. I urged (upon) him the importance of a prompt shipment, in getting it to us as soon as he possibly could.'

Mr. Renneker says:

'My first connection with that shipment was that we solicited it from Simons-Mayrant Company; after ascertaining that the shipment would move from Lakeland, Fla., we received a letter from the Cameron & Barkley Company, or from Mr. Jenkins, the president, under date March 8, 1906, inclosing two bills of lading covering the shipment of one steam shovel on its own wheels in part, and requesting that we insert the rate in the bill of lading.' The shipment was made from Lakeland, Fla., by the Cameron-Barkley Company and bill of lading issued to them; no notice of the purpose for which it was to be used was given to defendant's agent at Lakeland. The foregoing is the only direct evidence upon the issue in regard to notice upon which the claim for special damage is founded. Several years elapsed between the date of the transaction and the hearing of the cause. There is evidence of conversations and correspondence between Mr. Simons and Mr. Renneker subsequent to the shipment and issuing of the bill of lading, from which the parties draw differing inferences in respect to the principal or direct evidence. Their subsequent conversation and letters are capable of different constructions. The master rests his conclusion upon the belief on his part that it is probable that Mr. Renneker had forgotten the first conversation, in regard to which Mr. Simons testifies with much confidence. The master was personally acquainted with both witnesses, heard them, saw their manner while testifying, etc. In view of the principle by which courts are governed, in passing upon exceptions to findings of fact by the master, I would not think myself justified in reversing his conclusion. The defendant's exception to the first finding of fact is not sustained.

The master finds that the shovel was delivered to defendant's agent at Lakeland, Fla., on February 28, 1906; arrived at Savannah March 8th; was derailed at Savannah and fell into Bilboa creek on March 14, 1906; was raised (that is, taken from the canal) March 21st and 'survey for damages made April 2, 1906'; repairs commenced April 4, and completed April 18, 1906. It was accepted by the Seaboard Air Line Railway Company April 24th, reached Ft. Lawn, S.C., May 9th, and delivered to plaintiff May 12, 1906. He further finds: That from the date of shipment at Lakeland, Fla., two weeks, or March 14th, was a reasonable time within which it should have reached Ft. Lawn or Great Falls, S.C. That on March 21, 1906, plaintiff was prepared to receive it, and therefore 'this date is found when the shovel should have arrived, and that the delay beyond this date was caused by the negligence on the part of defendant, for which it would be liable.' There is no controversy in regard to these events or the dates upon which they occurred. The master further finds:

'From the testimony it appears that the shovel was derailed and thrown into Bilboa Creek, at Savannah, and allowed to remain in the canal for one week. From the testimony it appears that one truck was badly damaged, one side sill of the car damaged and bent, the piping was broken, the pump was broken, the boiler knocked loose from the machine and out of the machine altogether, the beam of the car was bent, and the house was completely broken off, the iron holding the roof and parts of the house bent and twisted. The small boiler connections were broken and the injector gone, the top valve gone, the small gauge gone, the gauge cock gone, and a portion of the castings. The repairs were made by the railroad company at Savannah, consumed two weeks, and cost $271.50. The testimony of the railroad witnesses tend to show that, after the repairs, the shovel was tested and found to be in as good condition as it was when received.'

There is no substantial controversy respecting the extent and character of the injuries sustained by the shovel at Savannah, which were visible to the witnesses who saw, examined, and repaired it. A careful examination of the testimony of all of the witnesses who testified regarding the condition of the shovel, as disclosed by an examination at Savannah, and the repairs thereto, convinces me that the testimony of Mr. Wright, superintendent, Mr. Sprowl, superintendent of motive power, Mr. McPheren, machine shop foreman, Mr. Hampton, foreman, freight car department, Mr. Petronovitch, foreman of boiler makers, all of whom examined the shovel and either superintended or assisted in its repair, some of whom tested it after repairing, and who testified intelligently and frankly, is reliable and entitled to credit. The testimony of Mr. Tovey in respect to his capacity to form an opinion, his opportunity for doing so, etc., should not be taken as discrediting these witnesses. In many material respects he does not contradict them; he did not see the shovel after the repairs were made. He is not a machinist and only saw the shovel while at Savannah, on one occasion, and but for one day, April 9, 1906, nine days prior to the completion of the repairs. The testimony shows that all injuries which were discovered while the shovel was in the defendant's shops at Savannah were repaired. The claim of the plaintiff is, to a large extent, dependent upon the question whether it sustained injuries, which were not discovered by the witnesses, which caused further injury to the shovel.

The testimony shows that it was delivered to the Seaboard Air Line Railway Company and by said company delivered to the Lancaster & Chester Railroad Company and by said carrier delivered to (that is, placed upon the track of) the Simons-Mayrant Company at Ft. Lawn or Great Falls on May 12, 1906, the point at which the work of excavation was to be done. In this connection the master makes the following finding:

'The shovel was received at its destination by the Simons-Mayrant Company under notice from them that the shovel was received subject to any claims for damages on account of its condition after its receipt. The shovel was not thoroughly examined but was set up, and, on the day it was received it was being moved along the tracks of the Simons-Mayrant Company to a point where it was proposed to be worked, when a second derailment occurred, and the shovel fell down an embankment and was injured, necessitating its repair and a loss of three

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