Lowry v. Railroad Co. , 92 S.C. 33 ( 1912 )

July 13, 1912. The opinion of the Court was delivered by This is an action against the defendant company for loss and damage to shipment to household furniture which the plaintiff shipped from Henrietta, Texas, to Sumter, S.C. Upon the first trial of the cause the presiding Judge directed a verdict in favor of the defendant, which upon appeal was reversed. See 88 S.C. 310. Some time thereafter and before the summer term of Court for Sumter county in 1911, the defendant gave notice that a motion would be made on July 3d for an order allowing an amendment to the original answer. This motion was not brought to a hearing by the defendant during that term of Court. On November 2, 1911, the defendant served upon plaintiff's counsel another notice that a motion would be made on November 6th, before the presiding Judge, Hon. Robert E. Copes, for an order to amend the answer. With this notice an affidavit of one of defendant's counsel was served, stating that he had only recently been able to secure complete information upon the facts upon which he was seeking to amend the answer. Judge Copes refused to allow the amendment, holding that the notice of November 2d of the motion to be heard November 6th was not sufficient as to time. This cause was then tried before a jury and a verdict rendered for the plaintiff. A motion was made for a new trial, which was overruled, and defendant appeals on fifteen grounds.

At the hearing of the cause in this Court, Exceptions 4, 5, 6, 7 and 10 were withdrawn by the appellant.

The first, second and third exceptions allege error on the part of his Honor, Judge Copes, in refusing to pass upon the merits of the motion for leave to amend the answer. The original notice of motion was served June 28, 1911, fixing the hearing of the motion on July 3, 1911, or "as soon thereafter as counsel could be heard." The motion was not heard at the July term of Court, and afterwards, on November 2, 1911, an additional notice was served notifying plaintiff's counsel that defendant would renew the notice of motion on the motion papers "heretofore served on June 28, 1911," on November 6, 1911, or "as soon thereafter as counsel could be heard." Judge Copes held that the notice served in June had lost all legal vitality and that the notice served in November was ineffectual because it did not allow sufficient time. We think his Honor was in error in so holding. The failure to dispose of the motion at the July term of Court did not destroy the vitality of the notice. It provided for it to be heard at that term or "as soon thereafter as counsel could be heard." The object of the notice was to prepare the opposing counsel. It would be an extremely technical rule which would as a matter of law deprive a litigant of the right to have a motion of this nature heard under the circumstances as developed here. His Honor was in error in holding that he could not hear the motion and that he had no discretion in the matter. He should have heard the motion and granted or refused it, as he saw fit in his discretion.

It is the better and safer practice for a Circuit Judge when a motion is made before him when he thinks he has no power to entertain it to intimate what he would do if he were clothed with the power, whether he would grant or refuse it, and then upon the appeal this Court could determine whether he had erroneously exercised his discretion or not. In the case at bar, Judge Copes held he had no power to hear the motion. It would have been the better practice for him to have decided if he had the power would he have allowed the defendant to file the amended answer or not. Under section 195 of the Code the Court upon a proper showing and upon such terms as the Court thought just, could have allowed the defendant to amend its answer without notice whatsoever.

While Judge Copes was in error in not entertaining the motion, we do not think the defendant was prejudiced as the proposed answer upon the showing made should not have been allowed. This case had been tried in the Circuit Court, verdict rendered for the plaintiff, appeal taken and a new trial granted and case remanded on April 4, 1911, for another trial. During all this time no effort was made by the defendant to amend its answer or to secure complete information. The action was originally brought on July 22, 1908, and defendant's counsel's affidavit upon which defendant relies to procure the order to amend answer is dated November 2, 1911. A careful reading of that affidavit will not show such diligence on the part of defendant's counsel in procuring the information upon which amended answer is based as to allow them now to file the amended answer. It does not show excusable mistake or inadvertence on their part and for this reason alone it would work injustice and hardship to the plaintiff at this stage of the proceedings to allow it to be filed. If there is any defense in the proposed amended answer at all the inexcusable neglect of the defendant in not pleading it sooner deprives it of the right to have it heard in this case. If there is any merit in it the plaintiff can be sued by the defendant in a separate action. The substance of defendant's affidavit is not that it was mistaken when it first answered but it was not convenient for it sooner to get the information upon which it bases its proposed new defenses.

We are clearly of the opinion that had Judge Copes considered the motion on the merits he would not have been warranted in granting the order asked for on the affidavit submitted, together with the proposed amendment.

The eighth and ninth exceptions alleged error on the part of the Circuit Judge in admitting, over objection, evidence showing that the defendant, its agents and servants, had attempted to have repaired some of the damaged furniture. Even if it were conceded that there was error in the first instance in admitting this evidence and allowing plaintiff to testify to a conversation she had on the subject with Cooper, the agent, of defendant, it was cured when defendant's attorney had Cooper in response to his questions testify in full as to what he did and as to the conversation between himself and the plaintiff. These exceptions are overruled.

Exceptions 11 alleges error in not directing a verdict in favor of defendant for insufficiency or total want of evidence on the part of plaintiff showing any loss or damage occurred while in defendant's possession and if goods were damaged at all or lost, it occurred before delivery of property to the defendant.

Exception 15 alleges error on the same grounds in not granting a new trial and the additional ground that the verdict is palpably excessive. There was sufficient testimony to carry the case to the jury and it is their province to settle all disputed matters of fact and there is sufficient testimony in the case to support their verdict. These exceptions are overruled.

The twelfth exception alleges error in refusing to charge defendant's first request, which is: "I charge you that the presumption of loss and damage by the last carrier cannot arise in any case where there is credible evidence tending to show that prior to the delivery of the goods to the last carrier they were not in fact in good order." There is no error here. It has been held where a presumption of law arises and there is some testimony to rebut this presumption it is for the jury and not for the Court to determine upon which side rests the weight.Baker v. Telegraph Company, 87 S.C. 174, 69 S.E. 151. This exception is overruled.

Exception 13 alleges error in modifying defendant's second request to charge and not charging it as submitted. His Honor modified the request by inserting the words, after word "authority," "express or apparent," so that the request as modified read, "that the agent had authority express or apparent to incur the expenses of making repairs, etc.," instead of charging the request, "that the agent had the authority to incur the expenses of making repairs, etc." This exception is overruled. It is "horn book law" that the agent must act within the scope of his authority, or within the apparent scope of his authority. Whenever there is evidence that there is an agent acting in the apparent scope of his authority to do certain things and it is shown that he has done these things apparently acting in the scope of his authority, then the burden would be shifted to the other side and it would be necessary for them to show by the greater weight of evidence that these acts on the part of the agent were outside of his authority. A principal who asserts that his agent has acted outside of his instructions must show it by the preponderance of the evidence.Whaley v. Duncan, 47 S.C. 139, 25 S.E. 54.

Exception 14 alleges error in charging plaintiff's second request. We see no error in this. His Honor qualified the request by adding the words, "and I charge you further that the presumption may be rebutted by evidence." He also in this connection charged defendant's fifth request to charge.

A reading of the Judge's charge will show that the jury were instructed that the defendant was not liable unless it was shown that the goods were lost or damaged by the defendant.

Judgment affirmed.

MR. JUSTICE FRASER concurs in the result.

MR. JUSTICE WOODS did not sit.