Seibels v. Northern Central Ry. Co. ( 1908 )

The first question is whether his Honor the circuit judge erred in refusing to set aside the attachment, on the ground that the complaint fails to allege facts, showing that the appellant is in any way liable for the acts of the other corporations.

The cases of Felder v. R.R., 21 S.C. 35, and Matthews v. Ry. Co., 38 S.C. 429, decide that in order to render the connecting line liable when the injury did not take place on it, the complaint must allege joint liability; that the sale of a through ticket over two or more connecting lines of railroad is not evidence of a joint contract between such roads, whereby one becomes responsible for the default of the other.

As I am unable to discover wherein the complaint alleges such facts as are sufficient to constitute a cause of action against the appellant, I can not concur in the views of Mr. Justice Jones upon this question.

The next question is whether there was error in refusing to vacate the attachment, on the ground that it was an interference with the interstate commerce clause of the Federal Constitution.

The burden rested upon the appellant to set forth such facts as showed that the box car was exempt from attachment, by reason of the fact that it was being used as one of the instrumentalities of interstate commerce. The affidavit of W.A. Duncan fails to show that the car was in actual operation at the time of the attachment, and it is a significant fact that the said affidavit likewise fails to make it appear how long the car had been standing upon the sidetrack idle and empty.

Furthermore, the affidavits introduced by the plaintiffs tended to show that a reasonable length of time had elapsed after the car had been in actual operation for the purpose of interstate commerce.

There is testimony to sustain the findings of fact by his Honor, the circuit judge, and as this is a proceeding on the law side of the Court, his findings are conclusive upon this Court.

The facts in this case are quite different from those inShore v. R.R., 76 S.C. 472, as in that case the car attached was loaded with produce which had been consigned to a person in Sumter, where the car was attached.

As, under my view of the case, the attachment should be set aside on the first ground hereinbefore mentioned, I concur in the judgment announced in the opinion of Mr. Justice Jones.