Thomas v. Atlantic Coast Line R. Co.
| Decision Date | 09 April 1909 |
| Citation | 64 S.E. 220,85 S.C. 537 |
| Parties | THOMAS v. ATLANTIC COAST LINE R. CO. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Sumter County; Geo. E Prince, Judge.
Action by Frank E. Thomas against the Atlantic Coast Line Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.
P. A Willcox and Mark Reynolds, for appellant.
L. D Jennings, for respondent.
In this case the circuit court affirmed the judgment of a magistrate court awarding to plaintiff $27, the value of 1 ton of cotton seed meal alleged to have been lost out of a shipment of 30 tons of cotton seed meal over defendant's line, the judgment also including $50 penalty, under an act of February, 1903, for not adjusting and paying the claim within the time required by law. On January 10, 1907, at Columbia S. C., the defendant issued to the South Carolina Cotton Oil Company its bill of lading, reciting that it had received from the South Carolina Cotton Oil Company 600 sacks of meal in apparent good order, to be delivered in like good order to plaintiff, at Wedgefield, S.C. The defendant received the car containing the shipment from the shipper at Columbia under the shipper's seal, and without counting the sacks. The car reached Wedgefield on January 12, 1907, and on Monday, the 14th, was turned over to the plaintiff, after the defendant's agent at Wedgefield had broken the seal and delivered 10 sacks to one whom he believed was authorized to receive it by the consignee. The consignee testified that he had not authorized the delivery to such person. When the consignee took charge of the car, according to the evidence submitted in his behalf, there were only 569 sacks of cotton seed meal therein, which, with the 10 sacks delivered by defendant's agent, made 579 sacks, or 21 sacks less than the amount called for in the bill of lading. Plaintiff filed a claim with defendant for 20 sacks shortage, amounting to $27, and, defendant failing to pay within 40 days, plaintiff brought suit for recovery of that sum and the penalty.
The magistrate charged the jury that, "as between the common carrier and the shipper, the bill of lading is not conclusive as to the quality of goods received, and parol testimony may be introduced to show that a less quantity has been received, but it cannot prevent the party who is to receive the goods from recovering what he loses from the common carrier," and declined to charge that the bill of lading was merely prima facie evidence as to the quantity of goods received; the issue being between the consignee for value and the carrier. When the jury came back for further instructions, the magistrate, in answer to an inquiry from the jury, instructed them: "If the plaintiff, Thomas, proves that he lost the meal, then I charge you that the railroad company is responsible for the loss." In view of the frank admission of counsel and the circumstances this last language of the magistrate is to be construed as meaning only to make the defendant responsible for the shortage between the quantity named in the bill of lading and the quantity delivered to the consignee.
The real question raised by the exceptions is whether a bill of lading, issued by a carrier to the shipper, and transferred to the consignee for value, is as between the consignee and the carrier conclusive evidence as to the receipt by the carrier of the quantity of goods therein mentioned, or is it only prima facie evidence thereof? A bill of lading is regarded as having a twofold character-as a receipt for goods delivered, and as a contract for their shipment. In so far as it may be treated as a mere receipt it is generally held that as between the original parties it is not conclusive, but is only prima facie evidence of the truth of its recitals, and may be varied or contradicted by parol. Whether as between the carrier and the consignee or transferee, not original parties thereto, the recital as to the receipt of goods is conclusive is a matter of considerable controversy. There is much authority in other jurisdictions for the view that, when no goods have in fact been delivered for shipment a bill of lading issued by the carrier's station agent is not conclusive evidence of the receipt of the goods, even in the hands of a bona fide consignee or purchaser for value, whether the bill of lading was issued by mistake or collusively with the shipper. Such seems to be the law in England ...
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