Williams v. American Ry. Express Co.

• Decision Date: 13 December 1921
• Docket Number: 10768.
• Citation: 110 S.E. 125,118 S.C. 121
• Parties: WILLIAMS ET AL. v. AMERICAN RY. EXPRESS CO. ET AL.
• Court: South Carolina Supreme Court

110 S.E. 125

118 S.C. 121

WILLIAMS ET AL. v. AMERICAN RY. EXPRESS CO. ET AL.

No. 10768.

Supreme Court of South Carolina

December 13, 1921

Appeal from Common Pleas Circuit Court of Berkeley County; T. J Mauldin, Judge.

Action by J. R. Williams and others against the American Railway Express Company and F. S. Barnes, as agent for such company. Judgment for plaintiffs, and defendants appeal. Reversed and dismissed.

Norval N. Newell, of Moncks Corner, for appellants.

E. J Dennis, of Moncks Corner, W. C. Wolfe, of Orangeburg, and Octavus Cohen, of Charleston, for respondents.

COTHRAN J.

Action for $650 damages on account of misrepresentation by the agent of the express company, as to the express rates upon a shipment of potatoes from St. Stephens, S. C., to New York City. Directed verdict on default in favor of plaintiffs for $600.50. The defendants appeal.

The complaint alleges, in substance, as follows:

That on June 3, 1920, the plaintiffs shipped by express from St Stephens, S. C., 212 barrels of potatoes, consigned to A. E Meyer & Co., New York City; that upon inquiry of the agent of the express company at St. Stephens, S. C., as to the rates by freight and by express the plaintiffs were informed that the difference would not be in excess of 22 cents per barrel; that they relied upon said representation, and shipped the potatoes by express; that if they had not been incorrectly informed as to said rates, they would have shipped by freight; that they lost in the difference by freight and by express $650. Action commenced June 30, 1920.

The defendants made default in answering the complaint, and on August 30, 1920, after notice, obtained from Judge Bowman an order granting them leave to answer the complaint within 10 days, upon payment of $20 to plaintiffs' attorneys and the costs. The defendants did not comply with the terms of Judge Bowman's order, but on October 19, 1920, served notice of a demurrer to the complaint upon the ground that it did not state facts sufficient to constitute a cause of action in that the freight rates and the express rates between said points are duly filed with the Interstate Commerce Commission, pursuant to acts of Congress, are thereby fixed by law, and constitute notice alike to the shipper and the carrier, both of whom are bound thereby, so that neither the carrier nor its agent is liable in damages, as a matter of law for misrepresentations as to the rates and tariffs.

Upon the call of the case before Judge Mauldin at December term the plaintiff's counsel objected to the hearing of the demurrer, upon the ground that the defendants had elected to go in default after the granting of the order, on terms, by Judge Bowman, and had no standing in court or right to be heard. Judge Mauldin sustained the objection, and passed an order refusing to hear the demurrer upon the ground that the defendants were in default. Thereupon a jury was empaneled, and after hearing the plaintiff's testimony, the circuit judge directed a verdict in their favor for $600.50.

After the entry of judgment upon this verdict the defendants appealed upon two exceptions: The first charges error in refusing to hear the demurrer, and the second in directing a verdict in favor of the plaintiffs, for the reason that the complaint shows upon its face facts insufficient to constitute a cause of action.

From the view which we take of the second exception, it will not be necessary to consider the first exception. The appeal will therefore be considered simply as one from a judgment by default.

In the case of Gadsden v. Hone Fertilizer Co., 89 S.C. 483, 72 S.E. 15, it is held that a default does not admit that the facts pleaded are sufficient to constitute a cause of action, and that, if it does not, any judgment entered thereon, except one of dismissal of the complaint, goes beyond the allegations of the complaint and should be reversed on appeal. That case really goes further than we are required to go in the case at bar; for there a cause of action was stated in the complaint, but the default verdict and judgment were set aside upon the ground that the complaint counted upon general damages, and a recovery was permitted upon proof of special damages which were not alleged, sustaining the conclusion upon 6 Enc. Pl. & Pr. 120, and 23 Cyc. 740, 752, 764:

"And so, if the complaint states facts which entitle plaintiff only to a certain kind of relief, or to relief only to a certain extent, a judgment by default, giving a different kind of relief or relief as to greater extent, is without authority of law, and cannot be sustained."

The testimony is not set out in the record; but, in view of the allegations of the complaint and of the direction of a verdict by the circuit judge, we must assume that there was evidence of both the freight rates and the express from St. Stephens to New York, the amount of the verdict, $600.50, representing the difference, which, of course, could not have been arrived at except by a comparison of those rates; otherwise, under the Gadsden Case, Cable Co. v. Duncan, 92 S.C. 373, 75 S.E. 552, and Duncan v. Duncan, 93 S.C. 487, 76 S.E. 1099, the circuit judge was in error in directing a verdict upon an issue which should have been submitted to the jury. We assume the presentation of this evidence under the presumption of regularity in a judicial proceeding.

In 10 C.J. 429, it is said:...