Spence v. Southern Ry. Co
| Decision Date | 12 October 1916 |
| Docket Number | (No. 9541.) |
| Citation | 90 S.E. 750 |
| Court | South Carolina Supreme Court |
| Parties | SPENCE. v. SOUTHERN RY. CO. |
Appeal from Common Pleas Circuit Court of Chester County; H. F. Rice, Judge.
Action by Willie Spence against the Southern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.
See, also, 101 S. C. 436, 85 S. E. 1058.
B. L. Abney of Columbia, and McDonald & McDonald, of Winnsboro, for appellant.
Marion & Marion, of Chester, for respondent.
HYDRICK, J. This appeal questions the right of the respondent in a former appeal to tax the costs thereof against the appellant therein, notwithstanding the judgment appealed from was affirmed upon a condition— that part of the recovery be remitted—which was performed. The action was brought in the court of a magistrate to recover $6.20, an admitted overcharge of freight growing out of an error in the weight of an interstate shipment, and the penalty allowed by statute for the failure of defendant to pay the claim therefor within 40 days after the filing thereof. Plaintiff had judgment for the full amount of the claim and the penalty. On appeal from that judgment, this court held, following the decision of the Supreme Court of the United States in C. & W. C. Ry. v. Varnville Furniture Co., 237 U. S. 597, 35 Sup. Ct. 715, 57 L. Ed. 1137, Ann. Cas. 1916D, 333, that the statute was void as applied to interstate commerce, and rendered judgment as follows:
The penalty was duly remitted, and, the condition upon which the judgment should stand affirmed having been performed, respondent was allowed to tax the costs of the appeal against appellant, as upon a judgment affirmed, on the authority of Stepp v. Association, 41 S. C. 206, 19 S. E. 490; Youngv. Cohen, 44 S. C. 376, 22 S. E. 409, and Sal-ley v. Ry., 79 S. C. 388, 60 S. E. 938.
The cases cited, and others that might be added, sustain the ruling of the circuit court. Appellant's attorneys concede this, but they contend that these cases have been overruled by the more recent cases of Burnett v. Senn, 93 S. C. 316, 76 S. E. 820, and Brown v. Kolb, 95 S. C. 217, 78 S. E. 894. But in this they are in error. The cases of Burnett v. Senn and Brown v. Kolb rest upon different principles, and are easily distinguished from the cases first above cited and from this case.
In Burnett v. Senn, plaintiff sued for $598. Defendant admitted that he owed plaintiff $37.51, and tendered him that amount, with costs to date of tender, which was refused. Nevertheless the circuit court rendered judgment, dismissing the complaint with costs against plaintiff. On appeal that judgment was reversed, and the case was remanded, with instructions to enter judgment for plaintiff for $37.51, the amount admitted to be due him, with costs to date of tender. 91 S. C. 175, 74 S. E. 376. Although plaintiff succeeded in reversing the judgment, it was held on a second appeal, involving his right to tax costs, that he was not entitled to tax any costs against defendant that accrued subsequent to the tender, including the costs of the appeal, on the ground that he failed to recover any more than had been tendered him, and therefore all subsequent litigation was caused by his wrongful act in refusing the tender and in trying to recover more than was due him. So, in this case, if defendant had tendered plaintiff the $6.20 which was admitted to be due him, and plaintiff had refused it, and had persisted in litigating for the penalty, this case would have fallen within the principle upon which Burnett v. Senn was decided. But no tender was made. True, the record shows that defendant wrote plaintiff a letter, admitting that it owed...
To continue reading
Request your trial