46 S.C. 104 | S.C. | 1896
The opinion of the court was delivered by
The plaintiffs are cotton buyers in this State, and, as such, shipped over the defendant railroad to the city of Savannah, Georgia, 171 bales of cotton, in two separate lots — one lot containing 110 bales and the other 61 bales, arriving at destination about 28th February, 1893.
The defendant stood the cotton bales up on the end of the bales, exposed to the weather, from 28th February, 1893, until the 23d of April, 1893, at which time they were shipped by the steamer D. H. Miller to the city of Baltimore, where they arrived on 25th April, 1893. The cotton was sold to Albert G. Ober, of that city. When weighed by Albert R. Rhett, a public weigher of that city, the heads of bales were found to be wet with water; the 110 bales of cotton, which weighed 57,045 pounds, had picked therefrom 1,823 pounds of cotton which was spoiled by water, thus leaving 55,222 pounds. The 61 bales of cotton, which weighed 30,439 pounds, had picked from them, as spoiled by water, 1,382 pounds, thus leaving 29,057 pounds. The first lot sold at 8-J cents per pound. The second lot was sold at 8J cents per pound. The gross loss was $319.29, which was reduced to $275.64 by a sale of the damaged cotton for $43.65-100. Hence the plaintiffs sued the defendant railroad company to recover from it the sum of $275.64, as injury to the 171 bales of cotton, which they alleged resulted to their property from their negligence and carelessness in exposing the cotton to the weather for nearly
'■'■Claim Damages on Wet Cotton.
Albert G. Ober, May 14, 1893.
Cotton spots and futures, 415 Water street, Baltimore. Messrs. Heathy Springs & Co. Dr.
S. Y. E- 110 bales cotton, original
weights.............................57,045 lbs.
Reweight after picking............55,222 lbs.
Allowance for damages............ 1,823 lbs., at 8fc., $157.24
G. E. D. 61 bales, original weight 30,439 lbs.
Reweight after picking............29,057 lbs.
1,382 lbs., at 8}c., 117.47
*109 Extra labor and weighing for picking 171 b. c. above....................................................... 44.58
Cr. $319.29
By sale of pickings........................................ 43.65
$275.64
Received of Merchant’s and Miner’s Transportation Company, April 25, 1893, from Savannah, with damages on end of bales, which necessitated picking to put in order. Albert G. Ober.”
Mr. Ryles, as attorney for defendants, in presenting his objection to the court, said: “The point we make is, whether a memorandum, which may be used for the purpose of refreshing the memory, can itself become evidence in the cause?” The court: “I cannot understand the force of the objection without knowing how the witness answered.” Mr. Ryles: “He answers: ‘The slip or statement was made out May 10, 1893, and represents correctly damages on cottou purchased from Heath, Springs & Co., and paid by them.’ ” The court: “He must speak from his memory; it must be the witness speaking and not the paper.” Mr. Ryles: “That is the point we make.” Mr. Abney, as attorney for plaintiffs: “He says that is a correct representation, that it is his knowledge of it put down in that paper.” The court: “I think it competent.” We have quoted the language of the colloquy to show that the objector himself changed the point he made from an objection to a slip as itself evidence to the use of it by the witness. Clearly, from the standpoint as to the use to be made of it, the Circuit Judge was in entire accord with our decisions and text-writers on this point. See the carefully prepared opinion of this court, announced.by the present chief justice in the case of the State v. Collins, 15 S. C., 376, 377, citing, inter alia, 1 Starkie on Ev., 128; 2 Russell on Crimes, 622; 1 Greenleaf on Ev., 436. After counsel has pointedly and advisedly submitted his objection to the paper, namely, to
Secondly. We will now examine the different phases of the motion for a nonsuit. Whether the defendant should have stored plaintiffs’ cotton in a warehouse and did not so act, was not the point on which defendant’s liability was made to depend. It was in evidence that cotton could be protected from injury incident to exposure in the weather, by other methods than being placed in a warehouse, namely, by being moved about from place to place after a rainfall. So the sixth ground of appeal, covering this matter, must be overruled.
The seventh, eighth, and nineth exceptions may be discussed together. The evidence was direct and positive that the plaintiff’s cotton was kept by the defendant in open air from the 28th February, 1898, until the 22d April, 1893,
As to the foiirteenth ground of appeal, we cannot see how the Circuit Judge could have more fairly stated the
The sixteenth ground of appeal complains that the Circuit Judge refused to grant a new trial. The case for appeal fails to disclose any such application. This court cannot, therefore, consider this question. Besides, in all candor, we would not interfere with the exercise of the discretion of the Circuit Judge in this matter under the case here presented. This ground of appeal is dismissed.
It is the judgment of this court, that the judgment of the Circuit Court be affirmed.