Ragin v. Northwestern R. Co. ( 1917 )

June 28, 1917. The opinion of the Court was delivered by On the 28th of October, 1916, the plaintiff shipped to Henry W. Frost Co. one bale of long staple cotton weighing 504 pounds, worth 29 cents per pound. Henry W. Frost Co. thereafter notified the plaintiff that there was a shortage of 117 pounds in the weight of said bale, aggregating in value $33.93.

The plaintiff brought suit in a magistrate's Court against the defendant, Northwestern Railroad Company of South Carolina, for said sum, and $50 penalty, but the magistrate rendered judgment in favor of said defendant on the ground that it had discharged its duty and delivered the bale of cotton to the consignee in good order.

On appeal to the Circuit Court the magistrate's judgment was reversed, and judgment rendered in favor of the plaintiff for the amount claimed, together with the penalty, and the defendant appealed to this Court.

The vital question in the case is whether there is any testimony from which a reasonable inference can be drawn that the defendant caused the loss of the cotton.

The following testimony was offered upon the trial of the case: C.H. Ragin, plaintiff, testified as follows: I shipped a bale of cotton to Henry W: Frost Co., at Charleston, over the Northwestern Railroad. Before the cotton was shipped, it was weighed by Mr. Frank Richbourg, the public cotton weigher, and weighed 504 pounds. The railroad company issued me a regular bill of lading (offered in evidence as Exhibit A), and I later got account sales from Frost Co. for a bale of cotton, in which there was a loss in weight of 117 pounds.

Cross-Examination: I shipped the cotton myself. The agent did not reweigh the cotton, but I told him what it weighed. When the bale left Summerton it was in good order; it had not been sampled. I have been farming 15 or 20 years; and if 117 pounds had been picked out of the bale it would have showed up pretty well.

Recross-Examination: I did not point out the bale of cotton to the agent, but gave him the ticket the weigher gave me.

J.F. Richbourg, public weigher at Summerton, a witness for plaintiff, said: I was weigher on October 28, 1916, and weighed a bale of cotton for plaintiff. It weighed 504 pounds. I issued him a ticket, showing the weight and kind of cotton. I put on the bale of cotton a mark and number. I went to see Henry W. Frost Co., in Charleston, about the cotton. I could not locate the bale, but they showed me a bale, but the mark was cut off, I could not tell if it were the bale or not. The middle letter looked like an H, but I could not tell what the others were. There was a little tag on the bale about 1 1/2 inches, marked "C.H.R.," but I do not know how it came there.

Cross-Examination: The bale pointed out to me as the Ragin bale was cut for samples, but it did not show that anything like 117 pounds had been pulled out. In my opinion there was no loss of weight in that bale. If the bale I saw in Charleston was the Ragin bale, I would say that the railroad company had delivered it in good order.

Redirect Examination: The cotton I saw in Charleston did not appear to have been tampered with along the way. About 22 bales were shipped at the same time, and none of them left with any little tag on them.

H.H. Medlin, a witness for plaintiff, said: I run a gin here. On October 28, 1916, I bought some seed from C.H. Ragin. My records show that the gross weight of the wagon and driver was 3,005 pounds, and the seed and bale of cotton he carried was 2,970 pounds, leaving 335 pounds of seed that were bought from him and by taking the weight of the seed from the cotton it leaves 505 pounds of lint cotton.

Plaintiff rests.

E.D. Hammond, a witness for defendant, said: I am, and was, in October last year, cotton clerk for the Atlantic Coast Line Railroad Company at Charleston. My duties are to keep records, deliver cotton, and keep things straight. My records show that on October 28, 1916, we received a bale of cotton from Summerton shipped by C.H. Ragin to H.W. Frost Co. I hold the original receipt showing that on November 7th, I delivered 20 bales of cotton to H. W. Frost Co., among them being one bale marked "C.H. R." to H.W. Frost Co. This cotton was delivered to Mr. Patrick Galvin, the drayman for Frost Co. My records do not show the weights. The cotton was in good condition when delivered, and did not show any sign of any cotton having been taken from it.

Patrick Galvin, a witness for defendant, said: I live in Charleston, and have been draymaster since 1877. In October, 1916, I drayed for E.H. Frost Co., H.W. Frost Co. and for Whaley Rivers. On or about the 28th of October, I received 20 bales of cotton from the Atlantic Coast Line Railroad Company, one bale being marked "C. H.R." I do not know how many pounds it weighed. This bale of cotton from external appearances was in A-No. 1 order, and I would have made objection to it if there was anything wrong. I sent the receipt to H.W. Frost Co. at Adger's wharf, and they held it to show the marks. This is my receipt for the 20 bales, amongst them the "C.H.R." bale. I delivered the cotton to H.W. Frost Co., and no exception was noted by them, and no objection made. (Exhibit A.)

The bill of lading issued by the agent at Summerton, S.C., to the plaintiff is in the usual form, receipting for one bale of cotton shipped by C.H. Ragin, consigned to Henry W. Frost Co., at Charleston, S.C. for one bale of cotton No. 1, marked "C.H.R." (long staple), weight 504 pounds (subject to correction).

The testimony establishes the following facts beyond controversy: First. That the bale of cotton in dispute weighed 504 pounds when it was delivered to the railroad company by the plaintiff. Second. That it was delivered by the railroad company to Patrick Galvin, the agent of Henry W. Frost Co., in good condition, and that there was no evidence of a shortgage until it came into possession of Henry W. Frost Co. Third. That the railroad company overcame the presumption that the loss occurred while the cotton was in its possession.

There is another matter to be determined. Henry W. Frost Co. were made parties defendants to the action in the magistrate's Court. They, however, appeared for the sole purpose of objecting to the jurisdiction of the Court, on the ground that all the members of the firm were residents of Charleston county, and the action was commenced before a magistrate in Clarendon county. The magistrate sustained the objection under section 23, art. V of the Constitution, and dismissed the complaint as to them. On appeal by the plaintiff to the Circuit Court the ruling of the magistrate was sustained, and the plaintiff has again appealed to this Court on that question.

The case of Jenkins v. R.R., 84 S.C. 343, 66 S.E. 409, shows that Henry W. Frost Co. pursued the proper practice for preventing waiver of their right to make objection to the jurisdiction of the Court.

Judgment reversed.

On rehearing October 18, 1917, the following order was made