Smith v. Southern Ry. Co

• Decision Date: 31 July 1911
• Citation: 89 S.C. 415,71 S.E. 989
• Parties: SMITH. v. SOUTHERN RY. CO.
• Court: South Carolina Supreme Court

89 S.C. 415

71 S.E. 989

SMITH.

v.SOUTHERN RY. CO.

Supreme Court of South Carolina.

July 31, 1911.

1. Carriers (§ 185^*)—Liability of Terminal Carrier—Presumptions.

Where the terminal carrier received and delivered a part of a shipment, the presumption was that it received the entire shipment, and, to escape liability, it must rebut the presumption.

[Ed. Note.—For other cases, see Carriers, Cent. Dig. § 837; Dec. Dig. § 185.*]

2. Evidence (§ 171*)—Secondary Evidence —Contents of Written Instruments.

The testimony of a consignee, suing a terminal carrier for failure to deliver all the property described in the bill of lading, that in reliance on the bill he paid a draft drawn on him by the shipper, was admissible as against the objections that the draft was the best evidence, since parol evidence of a writing which is only collateral to the issue is admissible.

[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 400, 528; Dec. Dig. § 171.*]

3. Carriers (§ 228*)—Terminal Carrier—Estoppel—Evidence.

Where the terminal carrier delivering to the consignee 127 hogs, while the bill of lading called for 157, sought to escape liability for the shortage by proving that the car contained only 127 hogs when received by it, evidence that the consignee in reliance on the bill of lading paid a draft drawn on him by the shipper for 157 hogs, was relevant on the issue of estoppel to deny the bill of lading.

[Ed. Note.—For other cases, see Carriers, Cent. Dig. § 059; Dec. Dig. § 228.*]

4. Carriers (§ 52*)—Bill of Lading — Estoppel.

A carrier issuing a bill of lading for a specified quantity of freight is estopped to deny the receipt of such freight as against a consignee in good faith relying on the statement of the bill of lading, paying a draft drawn on him by the shipper for the quantity of freight designated in the bill of lading.

[Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 150, 151; Dec. Dig. § 52.*]

5. Carriers (§ 173*)—Contracts by Initial Carrier—Liability of Connecting Carrier.

Where a traffic agreement between initial and connecting carriers made them partners in the carriage of freight or agents of each other, the connecting carrier is estopped from denying the recitals in a bill of lading in any case the initial carrier is estopped.

[Ed. Note.—For other cases, see Carriers, Cent. Dig. § 781; Dec. Dig. § 173.*]

6. Partnership (§ 49*) — Principal and Agent (§ 22*)—Traffic Arrangements Between Carriers—Evidence.

A bill of lading issued by an initial carrier for through shipment, which discloses a traffic arrangement between it and the connecting carrier so as to make them partners in the transaction or agents of each other, is inadmissible against the connecting carrier to establish such relation because the bill is only the declaration of the initial carrier that such relation exists.

[Ed. Note.—For other cases, see Partnership, Cent. Dig. §§ 67-73; Dec. Dig. § 49;* Principal and Agent, Cent. Dig. § 40; Dec. Dig. § 22.*]

7. Carriers (§ 185*)—Initial and Connecting Carriers — Traffic Arrangements — Evidence.

That a shipment was accepted and forwarded on a through rate does not prove the existence of a traffic arrangement between the initial and connecting carriers such as to make them partners in the transportation of the goods or as agents of each other, but it may be considered in connection with other evidence on the issue.

[Ed. Note.—For other cases, see Carriers, Cent. Dig. § 848; Dec. Dig. § 185.*]

8. Carriers (§ 173*)—Connecting Carriers —Liability.

A connecting carrier which has no traffic arrangement with an initial carrier so as to make the carriers partners or agents of each other, is not estopped by the recitals of a bill of lading issued by the initial carrier and it may show that the bill of lading erroneously states the quantity of freight received for transportation, the common law not imposing on the connecting carrier any liability for mistakes of the initial carrier in issuing bills of lading.

[Ed. Note.—For other cases, see Carriers, Cent. Dig. § 781; Dec. Dig. § 173.*]

9. Carriers (§ 172*)—Intrastate Commerce —Statutes—Applicability.

Act May 13, 1903 (24 St. at Large, p. 1). making connecting carriers agents of each other applies only to intrastate shipments.

[Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 99, 743-746; Dec. Dig. § 172.*]

10. Carriers (§ 20*) — Loss of Freight — Statutory Penalty.

Under the statute authorizing the recovery of a penalty for a carrier's failure to pay loss of freight, one must show that the loss occurred while the freight was in possession of the carrier, and that he is entitled to the full amount of his claim.

[Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 43, 44; Dec. Dig. § 20.*]

Appeal from Common Pleas Circuit Court of Abbeville County; John S. Wilson, Judge.

"To be officially reported."

Action by Enoch Smith against the Southern Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

Frank B. Gary, for appellant.

Wm. N. Graydon, for respondent.

HYDRICK, J. On January 28, 1909, M. A. Butler shipped a car load of hogs from Morrison, Tenn., to plaintiff at Columbia, S. C. The car passed over the lines of four connecting carriers, defendant being the last. The receiving carrier, the Nashville, Chat-tanooga & St. Louis Railway, issued a bill of lading, receipting for 157 bogs. When the car arrived at destination, it contained only 127 hogs. Plaintiff filed a claim with defendant for $150, for the loss of 30 hogs at $5 each, the value stipulated in the bill of lading, in case of loss. Defendant failing to pay the claim, this action was brought to recover the amount, together with $50, the statutory penalty for failure to pay the claim within the time prescribed by the statute.

Having received and delivered part of the shipment, the presumption arose that defendant received the entire shipment. Walker v. Railway, 76 S. C. 308, 56 S. E. 952; Bradley v. Railroad Co., 77 S. C. 317, 57 S. E. 1101. But the presumption may be rebutted. Bradley v. Railway, supra; McMeekin v. Railway, 85 S. C. 381, 67 S. E. 745. Defendant undertook to rebut it, and discharge itself from liability by proving that the car contained only 127 hogs, when received by it, and introduced testimony tending to prove that fact. Plaintiff contended that defendant was estopped to deny the recital in the bill of lading that the car contained 157 hogs.

Over defendant's objection, plaintiff was allowed to testify that, in reliance upon the bill of lading, he paid a draft made on him by Butler for 157 hogs. The contention that this evidence was incompetent, because the draft was the best evidence, cannot be sustained. The contents of the draft were not involved in the testimony. The mention of the draft was merely incidental, as showing the method of payment. But it was competent for plaintiff to say that he paid for 157 hogs, without reference to the mode of payment. Besides, parol evidence of a writing which is only collateral to the issue is admissible. Elrod v. Cochran, 59 S. C. 467, 38 S. E. 122.

The other ground of objection that the evidence was irrelevant is also untenable. It was relevant upon the issue of estoppel.

If defendant had issued the bill of lading, it would have been estopped to deny that the car contained 157 hogs, as against a consignee or transferee of it, who, in good faith relying upon the representation therein contained, had incurred loss or...