Fertilizer Company v. Railroad Company , 99 S.C. 187 ( 1914 )

October 9, 1914. The opinion of the Court was delivered by There is at issue 300 bags of cotton seed meal, worth $420.00.

A lot of meal was manufactured by Little Mountain Oil Mill and Fertilizer Company, and shipped by it to the plaintiff at Columbia.

Little Mountain is a station on the Columbia, Newberry and Laurens Railroad, betwixt Newberry and Columbia. The car was loaded on the 3d March, 1911; reached Columbia 5th March, and was delivered to plaintiff 8th March.

The shipment runs over the lines of the C., N. L. Railroad to Columbia, and thence for 150 yards over the terminals of the Southern Railway to the plaintiff.

The plaintiff bought of and paid the Little Mountain Company for 500 bags; but when the meal came to plaintiff's hands it contends there were only 200 bags in the car.

The first issue of fact is, did the Little Mountain Company put 500 bags in the car?

And the second issue of fact is, if 500 bags were so put, were 300 bags taken out the car while the car was in the hands of the C., N. L. Railroad Company, or while it was in the hands of the Southern Railway Company, or were they taken out at all before the care got into plaintiff's hands?

There have been two trials already before juries. At the first trial the jury found for the plaintiff against the Little Mountain Company.

The trial Judge set that verdict aside as to all the parties.

At the second trial the three issues above stated were, in effect, submitted to the jury, towit:

1. Were there five hundred sacks of cotton seed meal in the car in question at the time that it was sealed at Little Mountain and delivered to the Columbia, Newberry Laurens Railroad Company for transportation to the city of Columbia?

2. If you answer "Yes" to the preceding question, were the five hundred sacks of cotton seed meal still in the car in question when it was turned over to the Southern Railway Company to be transported to the warehouse of the Palmetto Fertilizer Company?

3. If you answer "Yes" to both of the preceding questions, then were the five hundred sacks of cotton seed meal still in the car in question when it was delivered to the Palmetto Fertilizer Company by the Southern Railroad?

The jury reported its inability to find upon the issues, and instead returned a general verdict for the plaintiff against C., N. L. Railroad Company for $420.00.

This appeal is by the Columbia, Newberry Laurens Railroad Company upon nine exceptions.

But the exceptions make only a few pregnant issues which ought to be decided. The exceptions will not be much considered in detail, or in numerical order, but in logical order.

The appellant's first exception is not sound. It is true that upon the first trial the jury acquitted both carriers and convicted the consignor; but the Court set aside the verdict "as to all the parties in the action." The effect of that order was plainly to put the cause just where it was before trial.

The eighth exception is sound. The Court practically instructed the jury that it must acquit the consignor, and upon the ground that the complaint alleged that the consignor had delivered to the carrier the full quota of meal. The third paragraph of the complaint did so allege; but the eighth paragraph alleged the contention of the C., N. L. Railroad Company; and that company by answer put in issue all the three questions submitted to the jury. The issues are made up by the entire pleadings, and it was a pregnant issue in the cause whether the consignor ever put full 500 bags in the car, one upon which a jury in the first trial found against the consignor.

It is true the Court submitted that issue to the jury; but after the Court had instructed the jury, "I do not see how you can find any verdict against the Little Mountain Oil Mill Company."

The third exception involves a question of practice. It is sound. The plaintiff first sued the C., N. L. Railroad Company for the price of 300 sacks of cotton seed meal. That company suggested by motion that it in fact never received the full five hundred sacks, and that if it did, another carrier last had possession of the car before delivery.

The new parties, the consignor and the terminal carrier, were brought in that these issues might be decided. They answered.

The law provides; "In all cases" the Court may instruct the jury "to find upon particular questions of fact." Code of Procedure, sec. 321; Manson v. Dempsey, 88 S.C. 193,70 S.E. 610.

The special verdict is the premise; the general verdict is the conclusion; the former controls the latter if the two shall be inconsistent. Code Civil Proc., sec. 322.

In our opinion, therefore, when the Court had, of right, ordered a special verdict, and in a case of peculiar need for such a verdict, the jury ought to have been required to find the special verdict; and the refusal to do so cast doubt upon the logical sequence of the general verdict.

The fourth exception is but an inference to be drawn from the truth of the third.

The fifth exception is but a restatement of the eighth.

The ninth exception is sound. It is true that as against a plaintiff who is an innocent purchaser the initial carrier is estopped to say the car did not contain that which the bill of lading unequivocally recites to be its contents.Thomas v. R.R., 85 S.C. 539, 64 S.E., 220, 67 S.E., 908, 34 L.R.A. (N.S.) 1177, 21 A. and E. Ann. Cases 223.

But as between the consignor and a receiving carrier, the fact must outweigh the recital.

The consignor cannot conclusively prevail against the receiving carrier for five hundred sacks simply because the bill of lading recited five hundred sacks. The bill of lading raises, in the consignor's favor, the presumption that the car did have five hundred sacks; but the carrier may show the truth against the writing and against the presumption. Phos. Co. v. Fert. Co., 94 S.C. 212,77 S.E. 1012.

The plaintiff here, though, is not the consignor; it paid the consignor's draft against 500 sacks, to which draft there was attached a bill of lading made and issued under the circumstances herein recited. The question now is, did the peculiar bill of lading in this case at all modify the rights of the plaintiff, consignee?

The consignor accepted a bill of lading which did not contain an unequivocal admission of the contents of the car. That paper recites that there were 500 bags in the car; but there was marked upon its face a plain warning in the letters "S.L. C." These characters are well understood by all parties, and especially by the plaintiff. They in effect mean, that the Little Mountain Oil Mill and Fertilizer Company, called sometimes the shipper and sometimes the consignor, had loaded the car and counted the bags; the practice was encouraged and approved by the business public; the car thus loaded was sealed up by the consignor, with the initial carrier's seal, and left thus standing on the consignor's sidetrack.

When the bill of lading went attached to the draft and was presented to the plaintiff, it carried notice to the plaintiff how the car was loaded.

Under these circumstances the carrier is not estopped to deny to the plaintiff consignee that there were 500 sacks in the car; it never afore time admitted that, expressly or impliedly, except by counsel in the progress of the trial; it has not misled the plaintiff.

But the recital of the bill of lading, that the car had 500 sacks of meal in it, must carry some meaning, even though the consignor counted the sacks.

The recital is prima facie evidence of the stated contents.

But if the plaintiff makes the contrary to appear, to wit, that the car had only 200 sacks when it reached its terminus, then the consignor must prove that 500 sacks were in fact loaded in the car.

Counsel for the plaintiff have cited not case in the Courts of this State determinative of the issue; but they have cited 2 Cyc. 418, and National Bank of Bristol v. B. O.R.R.Co., 99 Md. 661, 59 A. 134, 105 Amer. State Reports 354, which sustain this view. The instructions of the Court was against the initial carrier on the effect of this bill of lading; and was against the law.

The remaining two exceptions, two and seven, involve the right of the appellant to a direction of a verdict in its favor. They are unsound.

The testimony tends to show: The meal was put into the car on 3d March; the car was moved off the sidetrack on to the appellant's line on 3d March; the car was hauled away on towards Columbia on 4th March; the car reached Columbia 5th March, and on same day was delivered to Southern Railway Company, and by that company delivered to consignee on 8th or 9th March; that the seals first impressed on 2d March were intact up to the 8th or 9th, when the car was opened by consignee and the shortage discovered.

The rule is that a verdict should be directed where only one reasonable inference can be drawn from the testimony.Chester v. Surety Co., 91 S.C. 17, 74 S.E. 37.

It is sufficient to say, a reasonable inference might be drawn from the testimony, other than that the car was unmolested from 3d to 5th March, both inclusive.

The judgment below is set aside, and a new trial is ordered to be had pursuant to the rules herein laid down.