54 S.E. 360 | S.C. | 1906
April 23, 1906. The opinion of the Court was delivered by After service of the complaint herein, the defendant gave written notice of its motion before his Honor, Judge Memminger, to strike from the complaint certain parts thereof as irrelevant matter. A hearing was had before said Judge, who refused the motion and who filed the grounds of such refusal; thereafter an appeal was taken from said order refusing the motion upon five grounds.
To correctly grasp the situation raised by the appeal, it will be proper to reproduce the complaint and said grounds of appeal.
To report of the case should set forth the decision of the Circuit Judge. The following is a copy of the complaint:
"First. That the defendant is now and was at the times hereinafter mentioned a corporation duly organized and chartered under the laws of the State of Virginia, and is a common carrier of passengers for hire between the city of Charleston, State of South Carolina, and city of Augusta, State of Georgia.
"Second. That on the 20th day of February, 1905, plaintiff delivered his baggage, consisting of a trunk, to defendant at its depot in the city of Charleston, said State, for the purpose of carrying the same with him to Augusta, State of Georgia, on the defendant's train, which was advertised to leave the city of Charleston on the morning of the 21st of February, and that defendant received plaintiff's trunk into its baggage room at its depot.
"Third. That on the morning of the 21st of February, *292 as aforesaid, plaintiff purchased a ticket from the defendant, which entitled him to be transported together with his baggage from the city of Charleston to the said city of Augusta, and presented his ticket to the baggage master, defendant's agent, stationed in the baggage room at said depot for the purpose of having his said trunk checked to Augusta, but the defendant, through its said agent, refused to check the same, stating to plaintiff that his trunk was sent to Asheville, N.C., by mistake; but he assured him that the defendant would forward the same to Augusta, which would reach Augusta on the same day that plaintiff reached there. Upon this assurance plaintiff went to Augusta on said morning train.
"Fourth. That defendant failed to send plaintiff's trunk to Augusta as it contracted to do, and also kept plaintiff out of possession of said trunk for several days after he had returned to the city of Charleston.
"Fifth. That by reason thereof plaintiff was put to the expense of remaining in Augusta several days, lost the amount he paid for his ticket, lost the amount he had expended in advertising his business, lost the rent he paid for an office in which he intended to conduct his business, and suffered loss of time while out of possession of said trunk, and has been damaged thereby in the sum of $405.30.
"Wherefore, plaintiff demands judgment against the defendant for the sum of $405.30 and the costs of this action."
The following are the five grounds of appeal:
"First. Because it is respectfully submitted that his Honor, the Circuit Judge, erred in not striking out the following words in the fifth paragraph of said complaint, to wit: the words `lost the amount he paid for his ticket,' following the words `several days,' inasmuch as the words proposed to be stricken out cover special damages, and there are no allegations in the complaint showing that the special circumstances which would authorize the recovery of special damages were known to the defendant company, and the *293 said damages were too uncertain, speculative and remote to be recovered under the allegations of the complaint.
"Second. Because it is respectfully submitted that his Honor, the Circuit Judge, erred in not striking out the following words in the fifth paragraph of the complaint, to wit: the words `lost the amount he had expended in advertising his business, lost the rent he paid for an office in which he intended to conduct his business,' following the word `ticket' in said paragraph, inasmuch as the words proposed to be stricken out cover special damages, and there are no allegations in the complaint showing that the special circumstances which would authorize the recovery of special damages were known to the defendant company, and the said damages were too uncertain, speculative and remote to be covered under the allegations of the complaint.
"Third. Because it is respectfully submitted that his Honor, the Circuit Judge, erred in not striking out the following words in the fifth paragraph of the said complaint, to wit: the words `and suffered loss of time while out of possession of said trunk,' following the word `business' in the said paragraph, inasmuch as the words proposed to be stricken out cover special damages, and there are no allegations in the complaint showing that the special circumstances which would authorize the recovery of special damages were known to the defendant company, and the said damages were too uncertain, speculative and remote to be recovered under the allegations of the complaint.
"Fourth. Because it is respectfully submitted that his Honor, the Circuit Judge erred in deciding that the allegations of the complaint were sufficient to put the defendant upon inquiry of the special circumstances which were incident to the carriage or non-carriage of his baggage mentioned in the complaint.
"Fifth. Because it is respectfully submitted that his Honor, the Circuit Judge, erred in deciding that the allegations of the complaint were sufficient to imply such notice as to require the Court to submit the question to a jury whether *294 the carrier by the exercise of reasonable diligence might have ascertained the special circumstances incident to a breach of the contract; whereas, it is respectfully submitted that the defendant, under the allegations of the complaint, not only was given no notice of the special circumstances which would justify the recovery of the special damages, but no notice which would require the defendant company to make any inquiry, it being the duty of the passenger to inform the carrier of such circumstances and not the duty of the carrier to make inquiry of the passenger."
We will now pass upon the grounds of appeal in the following order:
First. As to the first, second and third grounds of appeal. When the complaint is examined it will be seen that all that the plaintiff did was to purchase a ticket in the office of the defendant railway in the city of Charleston, S.C. for a passage on said railway from the city of Charleston to the city of Augusta, Ga. That the plaintiff, on the 20th day of February, 1905, had placed his trunk in the baggage room of the defendant's station at Charleston, S.C. and that on the 21st of February, 1905, carrying his ticket so purchased to the baggage master of the defendant, he demanded that his trunk should be checked from Charleston, S.C. to Augusta, Ga. Whereupon said baggage master refused to check said trunk, giving as his reason for such refusal that said trunk had been carried by mistake from Charleston, S.C. to Asheville, N.C. But the said baggage master assured the plaintiff that the defendant would send his trunk to said city of Augusta, Ga., on that day, and that such trunk would reach him on his arrival on that day at Augusta, Ga. On the contrary, the trunk of plaintiff was never forwarded by the defendant to Augusta, Ga. That said trunk after the delay of several days was finally delivered to plaintiff in the city of Charleston, S.C. That the plaintiff remained in the city of Augusta, Ga., for several days without receiving his trunk. No doubt there occurred a serious inconvenience to the plaintiff being separated from *295
his baggage. But that is not the question here. The matter of concern just now is, did the servant and agent of the defendant receive any notice of the special circumstances of damage to the plaintiff, by the delay of his baggage. It has been held in this State, in the cases of Traywick v. Ry. Co.,
Second. We think this ground of appeal is well taken, for we do not think that the allegations of the complaint were sufficient to put defendant upon inquiry of the special circumstances which were incident to the carriage or noncarriage of his baggage, mentioned in the complaint. This exception is sustained.
Third. We cannot see how any questions could be presented to the jury, in view of the allegations of the complaint touching the exercise of reasonable diligence by the defendant in search of an ascertainment of any special circumstances relating to a breach of the contract. This exception is sustained.
It is the judgment of this Court, that the judgment of the Circuit Court appealed from be reversed. *296