Neuss, Etc., Co. v. Bamberg, Etc., Ry. Co.

Supreme Court of South Carolina

Neuss, Etc., Co. v. Bamberg, Etc., Ry. Co.

123 S.E. 327, 129 S.C. 197, 1924 S.C. LEXIS 5

CourtSupreme Court of South Carolina

DecidedJune 9, 1924

Docket11532

StatusPublished

This text of 123 S.E. 327 (Neuss, Etc., Co. v. Bamberg, Etc., Ry. Co.) is published on Counsel Stack Legal Research, covering Supreme Court of South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Neuss, Etc., Co. v. Bamberg, Etc., Ry. Co., 123 S.E. 327, 129 S.C. 197, 1924 S.C. LEXIS 5 (S.C. 1924).

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Opinions

June 9, 1924. The opinion of the Court was delivered by This is an appeal from a directed verdict in favor of the respondent against the appellant, by his Honor, Judge Featherstone, at the November, 1923, term for Bamberg County.

Exception 1 is overruled, as his Honor, in the exercise of his discretion, had the right to make the ruling that he did, and for the reason that the appellant withdrew his objection and proceeded with the case, and cannot now be allowed to question his Honor's ruling.

Exceptions 2 and 3 are overruled.

The claim was filed within six months. The appellants admit that they knew the claim was filed with the Clyde Steamship Company. The suit was brought eight days after the two years expired.

No other inference can be drawn from the evidence than that the appellant (the initial carrier) was notified that the claim had been filed in proper time with the Clyde Steamship Company.

The evidence shows that the terminal carrier made every effort to trace and locate the goods, and the initial carrier, the appellant, made no effort to assist the terminal carrier therein, did not even reply to their letters of inquiry.

The initial carrier is liable for loss no matter where the loss occurred. While suits must be brought within two years and one day, the bill of lading had this proviso: *Page 200

"That in case the claim on which suit was based was made in writing within six months suit shall be instituted not later than two years and one day after notice in writing is given by the carrier to the claimant that the carrier has disallowed the claim or any part or parts thereof specified in the notice."

This appellant failed to do.

All exceptions are overruled and judgment affirmed.

MESSRS. JUSTICES FRASER and MARION concur.

MR. JUSTICE COTHRAN: I dissent. The liability of the initial carrier under the Carmack Amendment (U.S. Comp. St., §§ 8604a, 8604aa), is coupled with its right to be reimbursed by carrier causing the loss. The consignee having released the intermediate carrier (Director General), who was the real carrier in default, by delaying suit for more than two years, has deprived the innocent, though legally responsible, initial carrier of a valuable right, and should be held estopped from proceeding against it.

MR. CHIEF JUSTICE GARY did not participate.

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June 9, 1924. The opinion of the Court was delivered by This is an appeal from a directed verdict in favor of the respondent against the appellant, by his Honor, Judge Featherstone, at the November, 1923, term for Bamberg County.

Exception 1 is overruled, as his Honor, in the exercise of his discretion, had the right to make the ruling that he did, and for the reason that the appellant withdrew his objection and proceeded with the case, and cannot now be allowed to question his Honor's ruling.

Exceptions 2 and 3 are overruled.

The claim was filed within six months. The appellants admit that they knew the claim was filed with the Clyde Steamship Company. The suit was brought eight days after the two years expired.

No other inference can be drawn from the evidence than that the appellant (the initial carrier) was notified that the claim had been filed in proper time with the Clyde Steamship Company.

The evidence shows that the terminal carrier made every effort to trace and locate the goods, and the initial carrier, the appellant, made no effort to assist the terminal carrier therein, did not even reply to their letters of inquiry.

The initial carrier is liable for loss no matter where the loss occurred. While suits must be brought within two years and one day, the bill of lading had this proviso: *Page 200

"That in case the claim on which suit was based was made in writing within six months suit shall be instituted not later than two years and one day after notice in writing is given by the carrier to the claimant that the carrier has disallowed the claim or any part or parts thereof specified in the notice."

This appellant failed to do.

All exceptions are overruled and judgment affirmed.

MESSRS. JUSTICES FRASER and MARION concur.

MR. JUSTICE COTHRAN: I dissent. The liability of the initial carrier under the Carmack Amendment (U.S. Comp. St., §§ 8604a, 8604aa), is coupled with its right to be reimbursed by carrier causing the loss. The consignee having released the intermediate carrier (Director General), who was the real carrier in default, by delaying suit for more than two years, has deprived the innocent, though legally responsible, initial carrier of a valuable right, and should be held estopped from proceeding against it.

MR. CHIEF JUSTICE GARY did not participate.

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123 S.E. 327, 129 S.C. 197, 1924 S.C. LEXIS 5, Counsel Stack Legal Research, https://law.counselstack.com/opinion/neuss-etc-co-v-bamberg-etc-ry-co-sc-1924.