Bagnal v. Southern Express Co.

91 S.E. 334 | S.C. | 1917

February 10, 1917. The opinion of the Court was delivered by This action was commenced in a magistrate's Court to recover the sum of $1, the alleged value of a box of peaches, shipped from a station in Clarendon county to the plaintiff at Sumter, S.C. and for the penalty of $50, for failure to pay the claim within the time required by law. The address on the box did not contain the number of the street upon which the plaintiff resided. The same person, however, who shipped the peaches in question, had, on several previous occasions, shipped boxes of peaches to the plaintiff similarly addressed, and they were delivered without delay. The box arrived at Sumter on Saturday morning of the 4th of July, but the 4th of July was not observed until Monday the 6th. Mrs. Adams, the daughter of the plaintiff, testified that on Tuesday morning, between 10 and 11 o'clock, she telephoned the express office and asked if any peaches were there for Mr. Bagnal, and was told by the man who answered (who she thinks gave the name of Dickinson) that some had come Saturday morning, that a notice had been sent, and that they had been thrown out Monday morning because of decay. Mrs. Adams was recalled, and testified that she called at the postoffice on Tuesday morning for mail; that the plaintiff's mail had been coming with hers, and had been received by him at her residence, both before and at the time in question, addressed like the card put in evidence, and that, when she called on Tuesday, the card was not delivered to her. There was no testimony tending to show that the plaintiff received any notice prior to the time when his daughter telephoned to the express company.

The following postal card was introduced in evidence:

Post Card Notice.

[Address side:] Unclaimed — J.M. Bagnal, Sumter, S.C.

[Reverse side:] Office of Southern Express Company (Incorporated), Sumter, State of S.C. 7-4-1914.

J.M. Bagnal: We have received to your address by C.O.D. $ ____ Express charges, $25, which please call and receive, presenting this card. After this notice the goods are held at your risk. Southern Express Co., by B.

This card bears a postmark dated July 6th, at 4 p. m., and stamped, almost directly over this, another postmark, dated July 7th, at 6 p. m. It is agreed that the original be exhibited to the Supreme Court. The reason the original was exhibited to the Supreme Court was to enable it to ascertain whether the date thereof had been changed.

The jury rendered a verdict in favor of the plaintiff for $1, the value of the peaches, and $50 penalty; and the defendant appealed to the Circuit Court. On hearing the appeal, his Honor, Judge Shipp, made the following order:

"I have read the entire record herein, and I am satisfied substantial justice has been done, and that judgment of the magistrate should be and is hereby affirmed.

"It appears in testimony that plaintiff had several times received shipments through the defendant company. The company must deliver perishable goods, if necessary, on Sunday or a legal holiday, if reasonable diligence requires it."

The defendant appealed to this Court upon exceptions, which will be reported.

Section 407 of the Code, relative to appeals to the Circuit Court, provides that:

"Upon hearing the appeal, the appellate Court shall give judgment according to the justice of the case, without regard to technical errors and defects which do not affect the merits. In giving judgment, the Court may affirm or reverse the judgment of the Court below, in whole or in part, and as to any or all the parties, and for errors of law or fact."

In the case of Stanford v. Cudd, 93 S.C. 367,76 S.E. 986, it was held that, where the testimony is sufficient to sustain a judgment of the magistrate's Court, and it is affirmed on appeal to the Circuit Court, this Court will assume that the Circuit Court affirmed the judgment on the merits, in the absence of facts showing that the affirmance was controlled or affected by errors of law. The language of the Court in that case was as follows:

"In obedience to the statute (section 407 of the Code), the Circuit Court might have concluded that the magistrate erred in refusing some or all of the defendant's requests, or in admitting some or all of the testimony objected to by defendant; but the Court might have thought, upon consideration of the case on the merits, that, notwithstanding such errors, the plaintiff was entitled to judgment; and as there was evidence which would have warranted such a conclusion, and as we cannot say that the judgment was affected or controlled by any error of law, it must be affirmed."

The rule is thus stated in Price v. Railway, 93 S.C. 576,77 S.E. 703:

"As the Circuit Court is required to give judgment, in such cases, according to the justice of the case, without regard to technical errors and defects which do not affect the merits (Code Proc., sec. 407), and as the record does not disclose the grounds upon which the Court rendered its judgment, we must assume that it was rested upon some sound and meritorious ground, and sustain it, if the record discloses any such ground."

Those authorities are conclusive of this case. There is nothing in the record showing that his Honor, the Circuit Judge, based his conclusion upon any of the propositions of law which the appellant's attorneys contend are erroneous; and the judgment of the Circuit Court is shown by the testimony to rest upon sound and meritorious grounds.

Affirmed.