98 S.E. 286 | S.C. | 1919
January 28, 1919. The opinion of the Court was delivered by
The appeal involved in this case is from orders of his Honor, Judge Wilson. Both plaintiff and defendant, Henry W. Frost Co., appeal from said orders of his Honor. The issues in this case are the "aftermath" of the case between same parties in the case reported in
The first, second, and fourth of Henry W. Frost Co.'s exceptions raise the question whether the plaintiff has complied with Judge Wilson's order, and alleged a joint obligation between the defendants. If he has not done so, then he does not state a cause of action against Frost Co. Under the facts of the former decision in this case, there is not a particle of doubt that there never was a joint possession of the bale of cotton, the subject matter of the suit, or a joint tort between the railroad and Frost Co. If the railroad received the cotton as a common carrier consigned to Frost Co., and delivered it to Frost, then its liability ceased, for the railroad had then done as it had contracted to do. If Frost received the cotton and failed to account, then *397 Frost Co. would be liable. The undisputed evidence in the former case shows that the railroad delivered the cotton to Frost Co., and that Frost Co., according to the allegation of the complaint, accounted in part.
There is no sufficient allegation that there was a joint conversion. A mere suggestion, an allegation to that effect, without stating facts or circumstances to allege the facts, is not sufficient. When the plaintiff elected to allege, as he did in the former suit which was passed upon by this Court, that the railroad received the cotton consigned to Frost Co., then, under a proper showing, he could have held the railroad responsible if the railroad had failed to carry and deliver to Frost. When, however, the railroad delivered to Frost the cotton, then its liability ceased; and if Frost Co. received the cotton, and failed to account for the same, and plaintiff feels aggrieved, then he can sue Frost Co. This Court decided in the former case that there was no joint tort, and that the cause of action against Frost Co. could not be tried in Clarendon county.
There is no principle of law whereby a consignee becomes liable with the carrier for loss in transportation, or that the carrier becomes liable with the consignee for his failure to account. In the former case the Court says, "Clearly, both are not liable." The facts conclusively show that the carrier is not liable. This leaves the matter open between plaintiff and Frost Co., and Frost Co. cannot be sued in Clarendon county. Under all of the exceptions the real question in the case is whether the complaint alleges a joint obligation between the defendants. There is none.
Plaintiff's exception overruled; Frost Co.'s exceptions sustained.
*398Judgment reversed.
