Jefferson v. Southern Express Co.

87 S.E. 209, 103 S.C. 75, 1915 S.C. LEXIS 243

• Court: Supreme Court of South Carolina
• Decided: December 1, 1915
• Docket: 9242
• Status: Published

Opinions

The opinion of the Court was delivered by

Mr. Justice Gage.

The issue of law is, whether an express company at Greenwood, South Carolina, which has carried from Jacksonville, Florida, to Greenwood, two quarts of whiskey worth two dollars, directed to the plaintiff, may refuse a delivery to him upon the ground that the consignee was not yet twenty-one years of age; and may refuse a delivery to the plaintiff’s father upon the same ground.

It is true the plaintiff is a minor, as the suit here shows upon its face.

The action is for a tort arising out of the refusal, and is for five hundred ($500) dollars damages.

The complaint alleges also that the defendant’s refusal to deliver was wilful and malicious.

The Circuit Court sustained the defendant’s view of the law and directed a nonsuit in pro forma order. The plaintiff has appealed and has stated five exceptions.

There is only one chief issue, and that is, was the express company justified in its refusal, and upon the grounds it gave for the refusal.

1 The company now relies for its excuse first upon section 853 of the Code of Laws of this State. That statute has no relevancy to the circumstances of this case.

It was made to govern dispensers in the sale of whis- . key.

2 The company next relies upon section 238 of the Federal laws. That section is this:

“Any * * * express company * * * who shall knowingly deliver * * * to any person other than the person to whom it has been consigned, unless upon the written order in each instance of the bona fide consignee, or to any fictitious person, or to any person under any fictitious name, any spirituous * * * liquors shall be fined not more than five thousand ($5,000) dollars, or imprisoned not more than two years.”

That statute has no relevancy to the circumstances of the case.

There was no denial by the company that the plaintiff was other than the plaintiff who was the named consignee. The company in effect admitted the plaintiff’s identity. There was no occasion for a written order. The refusal was made because the plaintiff was a minor, and not because he was a fictitious person.

2. Independent of the statute, the company was wrong to decline delivery because the plaintiff was a minor.

3 If A should leave a horse at an innkeepers to be'delivered by the innkeeper to B, the innkeeper could not refuse to deliver because B was a minor. For a delivery the innkeeper would not be liable to A; he has but carried out A’s direction.

For a delivery the innkeeper would not be liable to B; B would be estopped to say he had not received the horse.

The case at bar is the same.

3. The respondent assigns here another ground for sustaining the order below, and that is there was no proof of the value of the whiskey.

4 That was not one of the four grounds assigned before the Circuit Court for granting the order, and it cannot be considered here.

4. But we think there was no evidence at this trial of wilfulness.

The order, however, dismissed the entire complaint. There must be a new trial at all events. The evidence at the next trial may show wilfulness. That issue which lie's in the future is, therefore, not now finally adjudged.

It is ordered that the direction for nonsuit be set aside, and the cause is remanded for another trial.

Messrs. Justices Hydrick and Watts concur in the opinion of the Court.