38 S.C. 78 | S.C. | 1892
The opinion of the court was delivered by
In August, 1888, the plaintiff employed the defendant to transport from Augusta, Georgia, to Green-ville, in this State, 400 kegs of powder, consigned to James T. Williams & Co., who were the agents of plaintiff at Greenville, S. C. The value of the powder at Greenville, S. C., was $2.15 per keg, aggregating $860. The freight charges were $137. While on the way over the defendant’s road, the car in which the powder was being carried to its destination was thrown from the track, and the powder and the kegs holding the same were injured both by the violence of the derailing and also by a rain that fell upon it. In this damaged condition the defendant, both formally and informally, offered to turn over the consignment to the consignee, but upon the express condition that the. freight charges should be first paid. This offer was
Plaintiff then instituted an action against the defendant, in the Court of Common Pleas for Greenville County, in this State, on two causes of action, as set out in the complaint, the first of which alleged that, by reason of the negligent conduct and misbehaviour of the defendant as a common carrier in the transportation of the powder in question, the same were wholly lost to plaintiff, to his damage $860; and the second of which alleged that, by defendant’s negligence and misbehaviour as a common carrier in the transportation of such powder, the goods were damaged one-half of their value, to plaintiff’s damage $430.
The answer of defendant, while admitting its employment as a common carrier by the plaintiff for the 400 kegs of powder, denies any liability for damages upon three grounds: first, that the terms of a special contract exempted the defendant from any liability, that otherwise might have attached to it as a common carrier, for any accident incident to railroad transportation, or from leakage, breakage, loss in weight, or damage by heat, wet, or decay; second, that plaintiff had failed, within ten days succeeding contract of shipment, to make claim for total loss, or in twenty-four hours after offer of delivery of consignment, both of which appeared in the special contract; third, that all injuries to the powder occurred through an accident on defendant’s road, but the damage was slight, consisting of some indentations to the kegs, and that when the powder was offered to the consigned, he refused to take it. As a counter-claim, the freight charges of $.137 were set up. The answer also controverted the facts embodied in plaintiff’s second cause of action.
The cause came on to be heard by bis honor, Judge Wallace, and a jury, at the March Term, 1891, of.the Court of Common Pleas for Greenville. The first cause of action was relied on. The verdict of the jury was for the plaintiff, in the sum of $860. After judgment, the defendant appealed to this court, on the following grounds:
1. Because .the Circuit Judge erred in refusing to grant a
2. Because the Circuit Judge erred in refusing to charge the jury, as requested by defendant, as follows: “That if the plaintiff failed to make a claim for the damage to the powder within the time limited in the bill of lading introduced in this case, then the plaintiff cannot recover, and their verdict must be for the defendant.”
3. Because his honor, the Circuit Judge, erred in refusing to charge, as requested by the defendant: “That there being no evidence of a conversion of the powder by the defendant in this case, the plaintiff cannot recover as for a total loss, but only for the damage done to the powder at the time of the tender made to the consignee.”
4. That his honor, the Circuit Judge, erred in refusing to charge the jury, as requested by the defendant: “That if the jury believe from the evidence that the goods were only damaged, then the consignee was bound to receive them, and make his claim for the damage; but he cannot abandon them, and sue the carrier for a total loss.”
5. Because his honor, the Circuit Judge, erred in refusing to charge the jury, as requested by the defendant: “The law of South Carolina requires consignees to receive shipments of goods even if they are damaged, and then bill the railroad for the damage. Consignees cannot refuse to receive goods because they are damaged; if the goods have been duly tendered to the consignee and refused by him, the owner is responsible for all loss subsequent thereto.”
6. Because the Circuit Judge erred in refusing to charge the jury, as requested by the defendant: “If the freight arrives at the point of destination in a damaged condition, the consignee cannot elect to take the sound portion and reject the unsound portion, paying freight charges on the sound portion only. But the consignee must take the whole, paying freight charges for the whole, and then proceed to make claim against the carrier for the damage.”
7. Because his honor, the Circuit Judge, erred in refusing
8. Because his honor, the Circuit Judge, after having given defendant’s ninth request to charge, as follows: “The defendant has in this action sued the plaintiff, by way of counterclaim, for freight charges and storage. If you find that these have been proven, you will give the amount proven full consideration. If the damages proven are larger than this amount, you will abate it therefrom; if the amount is larger than the damages proven, you will deduct the damages proven from the amount of freight and storage, and give a verdict for the remainder to the defendant;” erred in that he proceedéd to qualify, the same as follows: “I don’t think a consignee is bound to accept damaged goods and pay freight on them, as a condition to his right of action. If he brings his action and recovers the. value of the goods at the place of destination, I think, probably, he should pay freight, because that would put him in statu quo — would put him where he would have been if he had sustained no injury at all. If he has property in the depot which the railroad company refuses to deliver upon demand, he has the right to recover the value of the property, and if the railroad company is a wrong-doer, I don’t think it could recover freight. If the railroad company refused to deliver goods to the consignee, Mr. Williams, when he was entitled to them, then Mr. Williams would not be bound for any expense which was subsequently incurred. Now, if Mr. Williams was entitled to any portion of it, and it was refused and the powder was stored, the storage was a wrongful act, and Mr. Williams would not be responsible for it.”
9. Because the Circuit Judge erred in charging the jury as follows: “I hold here that the consignee may receive the goods or not, at his option. * * * If a plaintiff, who is also consignee, brings his action against the railroad company, and shows that the railroad company has undertaken to transport
There are involved in the solution of the appeal here several serious questions, and in our consideration of them it may be necessary for us to state the law, as it has been determined in our State, bearing upon the different branches of this contention.
Just here it may be pertinent to state, that there is no change in the ownership of goods when shipped from one point to another through the hands of a common carrier. In other words, the common carrier thereby acquires no ownership of the goods shipped through his agency. All the rights of such common
The judgment of this court is, that the judgment of the Circuit Court be reversed, and that the cause be remanded to the Circuit Court for a new trial.