Mills v. Southern Ry.

73 S.E. 772, 90 S.C. 366, 1912 S.C. LEXIS 77

• Court: Supreme Court of South Carolina
• Decided: February 20, 1912
• Docket: 8097
• Status: Published

Opinions

The opinion of the Court was delivered by

Mr. Chirr Justice Gary.

This action was commenced in a magistrate’s court, and is for damages alleged to have been sustained by the plaintiff, through the wrongful acts of the defendant.

The allegations of the complaint are as follows:

“That the plaintiff is, by trade, a-barber, and desiring to engage in his trade at Langley, he rented a house at a rental of $5.00 per month, and announced to -the public, that he would open a place of business, commonly called a barber shop, on or about the first day of April, 1906, and for that purpose, he purchased an outfit for his shop, consisting of chairs and mirrors, which was delivered to the defendant, by the August Kern Barber Supply Company in the city of St. Louis, in the State of Missouri, on the 24th day of March, 1906, and reached Langley on the 3d day of April, 1906, and the defendant, through its agents and servants, •wilfully, maliciously, wantonly, negligently, and in utter disregard and violation of the plaintiff’s rights, failed and refused to deliver the said articles to the plaintiff, without any reason whatever, for a long space of time, in consequence of which failure to get possession of his aforesaid appliances, he was unable to open his barber shop and engage in his business, and his landlord, the Langley Manufacturing Company, in consequence of such long delay, has rented and let the barber shop to another party, and thus deprived this plaintiff of carrying on his business, because there is no other suitable house, which can be obtained in that locality; and plaintiff further alleges, that that particular place is the best and most desirable stand for the barber business in the village of Langley, averaging an income of fifteen dollars a -week with one chair; by reason of all of which wilful, wanton, malicious and negligent conduct of the defendant, this plaintiff has been greatly damaged, in the sum of one hundred dollars.”

The defendant denied generally, the allegations of the complaint.

The magistrate rendered judgment in favor of the plaintiff, for one hundred dollars, whereupon the defendant appealed to the Circuit Court, but the appeal was dismissed and the defendant again appealed, upon exceptions, which will be reported.

Section 368 of the Code provides that, upon hearing an appeal from an inferior court, the Circuit Court shall “give judgment according to the justice of the case, without regard to technical errors, which do not affect the merits.” Therefore, those exceptions assigning errors that are merely technical, and do not affect the merits, will be disregarded. We proceed to the consideration of the exceptions, in the light of this provision.

1 First Exception: The following statement.appears in the record: “Defendant’s counsel objects to any testimony, as to what the plaintiff thinks, believes, or calculates that he could have made, in his business as barber, during the alleged delay in the delivery of the freight in question, on the grounds that the same are both special and speculative damages and hence inadmissible.” Special damages are recoverable, when the carrier receives notice at the time of the shipment, that the loss of the property or delay in its delivery, will result in such damages. The testimony was in response to the allegations of the complaint, and while the magistrate might have objected to proof of-such damages, unless it appeared that the carrier had notice thereof at the time of shipment, the appellant had no such right. Martin v. Ry., 70 S. C. 8, 48 S. E. 616. Furthermore, the objection to the testimony, was not based upon the ground, that the carrier did not receive notice of such damages, at the time the goods were shipped.

Second Exception: In the first place, there was other testimony of the witness, Knox, to which there was no objection, and, in the second place, the testimony was in response to the allegations of the complaint.

3 Third Exception: In the first place, this ground of objection is too technical, as the question arose in a magistrate’s court; and in the second place, the appellant has failed to show, that there was prejudicial error. The next question that will be considered is, whether there was any testimony tending to show, that the plaintiff was entitled to punitive damages.

4 The plaintiff testified as follows: “When I found that my goods were in the depot, I went to see about them, and the agent would not let me have them; said he did not have any freight bill. The agent, Mr. Gaillard, told me just a day or two before I got the goods, that I could have the goods, if I would give him ten dollars to' hold. I did not give it to him, he wanted it to hold, did not tell me how much freight was due on them. I thought he had as much right to trust me as I him. I went to see about my goods two or three times a day, to see about them. I worked at carpentering in the meantime. My material stayed in there a month or more, about the last time I went to ask Mr. Gaillard about it, he said he had quit fooling with it all. I paid $9.88 on these goods, that was May 1st last. The goods came about the 9th day of April and ’twas May 1st before I got my goods, and the shop was rented at that time. While I was waiting for my goods, Mr. Corley held the key. He was holding the shop for me. Just before I got my goods out, Mr. Corley rented my shop to Mr. Knox. I had the money to pay freight all the time while I was waiting. I paid rent for the month of April, 1906, five dollars.”

There was a delay from the 9th of April, until the 1st of May; the defendant knew, that the plaintiff was being greatly inconvenienced, by such delay, the defendant had knowledge of all freight charges, except those due the Terminal Railroad Association for transporting the articles of merchandise, from* St. Louis City to East St. Louis, just across the Mississippi River — a very inconsiderable portion of the distance between St. Louis City and Langley, S. C.; it was the act of the defendant and not of the plaintiff, that caused the delay in the delivery of the goods — the plaintiff merely stood upon his legal rights; when the defendant realized, that it was unable to ascertain the amount of the freight charges, due the Terminal Railroad Association, it was very unreasonable for it to delay the delivery of the goods; they must have known that such freight charges, would be almost unappreciable for so short a distance. Under these circumstances the testimony tended to show, a reckless disregard of the plaintiff’s rights.

5 The remaining exceptions either involve questions of fact, which cannot be reviewed by this Court, or were not raised in the magistrate’s court.

Judgment affirmed.