Diamond v. Southeastern Express Co.

128 S.E. 417, 131 S.C. 452, 1925 S.C. LEXIS 166

Opinions

The opinion of the Court was delivered by

Mr. Justice Watts.

This is an appeal from an order of Special Judge Simkins affirming the judgment of the magistrate court.

Exceptions 1 and 2 are overruled- as being without merit.

Exception 3 imputes error in not directing a verdict for appellant for the reason that the shipment in question was an interstate shipment, and under the terms printed upon the back of the express receipt written claim was not filed within four months after delivery or within four months after reasonable time for delivery had elapsed in accordance with the terms of the receipt. The Interstate Commerce Act (U. S. Comp. St. Ann. Supp., 1923, § 8604a) provides:

“That it shall be unlawful for any such common carrier to provide by rule, contract, regulation, or otherwise a shorter period for giving notice of claims than ninety days, for the filing of claims than four months, and for the institution of suits than two years, such period for institution of suits to be computed from the day when notice in writing is given by the carrier to the claimant that the carriér has disallowed the claim or any part or parts thereof specified in the notice: Provided, however, that if the loss, damage or injury complained of was due to delay or damage while being loaded or unloaded, or damaged in transit by carelessness or negligence, then no notice of claim nor filing of claim shall be required as a condition precedent to recovery.”

The damage claimed was due to the appellant’s negligence and delay in delivering the picture when it had an agent and office in Barnwell and held itself out as a common carrier.

The exceptions are overruled, and judgment affirmed.

Mr. Justice Eraser and Messrs. Acting Associate Justices J. Wm. Thurmond and E. A. Mieeer concur. Mr. Justice Marion dissents.