Smith v. Southern Ry. Co.
| Decision Date | 31 July 1911 |
| Citation | 71 S.E. 989,89 S.C. 415 |
| Parties | SMITH v. SOUTHERN RY. CO. |
| Court | South Carolina Supreme Court |
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.
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, Chattanooga & St. Louis Railway, issued a bill of lading, receipting for 157 hogs. 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 liability. Thomas v. Railroad Co., 85 S.C. 537, 64 S.E. 220, 67 S.E. 908.
If there was a traffic arrangement between defendant and the initial carrier which would make them partners in the carriage of goods, or agents of each other, defendant would be estopped under the same facts which would raise an estoppel, if it had issued the bill of lading itself. Bradford v. Railroad Co., 7 Rich. 207, 62 Am. Dec. 411; 6 Cyc. 478. The act of the agent is the act of the principal. The bill of lading points to such an agreement.
It does not purport to be an agreement only between the receiving carrier and the shipper, but it states that it is made between the receiving carrier and its connecting lines of the first part and the shipper of the second part; and it recites that the receiving carrier " and its connecting lines as common carriers transport live stock only as per above tariff." Throughout the agreement the receiving carrier and its connecting lines are referred to as the party of the first part. There are other features of the contract which point in the same direction. The bill of lading would, therefore, be evidence against the carrier which issued it that its connecting carriers were its agents. But it is no evidence against a connecting...
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