Piero v. Southern Express Co. , 103 S.C. 467 ( 1916 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] March 7, 1916. The opinion of the Court was delivered by This is an action for damages, alleged to have been sustained by the plaintiff through the wrongful acts of the defendant, resulting in injury to a piano, and delay in its shipment from Sumter, S.C. to Cameron, S.C. The facts out of which the controversy arose are alleged in the complaint, which will be reported. The answer of the defendant was a general denial. The jury rendered a verdict in favor of the plaintiff for $200, actual damages, and $500 punitive damages; and the defendant appealed.

The first and second exceptions are as follows:

"Because it is respectfully submitted his Honor erred in allowing the plaintiff, Piero, to testify, over objection of the defendant, as to what his average earnings from his show were, in other towns, approximately the same size as Cameron, when he had a piano in his show, as a basis for the jury to award him special damages. Whereas, his Honor should have ruled out the testimony as highly speculative, in that it was dependent upon a great many conditions on which the witness necessarily gave only his opinion, which opinion was incompetent.

"(2) Because his Honor erred in allowing the plaintiff, Piero, to give his opinion as to conditions prevailing in other towns, and also the amount of the gross receipts for his show in Eutawville, a town which he did not believe was any larger than Cameron, as a basis on which the jury should award him special damages in this case. Whereas, his Honor should have ruled out the same on the ground that it was speculative and remote, and the opinion of the plaintiff, which was incompetent."

The record shows that the questions presented by these exceptions arose as follows:

"By Mr. Jennings: Q. I will ask this question: I want you to state to the Court and jury your average earnings. I don't mean any special day or week, but I mean your average earnings in towns of approximately the same size as Cameron, and under the same conditions as existed in Cameron, when you had the piano.

"Mr. Reynolds: That would be his opinion as to the condition, and I object on that ground.

"Court: He can state the conditions. A. The week before I showed in Cameron was practically the same kind of week — in Eutawville, in a town I don't believe any larger than Cameron is, my gross receipts of the show was something over $1,000. Q. In one week? A. Yes, sir. Q. What were the gross receipts at Cameron? A. I don't know. They were not very much.

"Mr. Reynolds: I object to that."

The appellant's attorney in his argument says:

"It was clearly error for his Honor, in a case like this, to give this shrewd showman the reign to his imagination as to what his entire show would make, or could have made, at other times and other occasions in the past."'

It will be observed, however, that the ground of objection to the testimony was not that it would tend to prove the average earnings of the entire show, but simply on the ground that the testimony "would be the opinion of the witness as to the condition."

The second objection stated no ground whatever, and is therefore too general for consideration.

No good reason can be assigned why the difference in the earnings of the show, at Cameron, without the piano, and the average earnings in towns approximately the same size, and under the same conditions as existed in Cameron, would not tend to show the actual damages, caused by the delay in the shipment of the piano.

The third exception is as follows:

"Because his Honor erred in allowing the plaintiff's witness, W.L. Harris, to testify over the objection of defendant, as to the damaged condition and appearance of the piano when it was taken from the possession of Piero by the seller, a year or more after the delivery of the instrument at Cameron by the express company. Whereas, he should have ruled out the same as irrelevant, the piano having been hauled around from small town to small town, over railroads and on wagons, and exposed to rains and many changes in temperature."

There are two reasons why this exception cannot be sustained. In the first place, the testimony was in response to the allegations of the complaint; and, in the second place, even if there was error, the other testimony shows that it was not prejudicial to the rights of the appellant.

The fourth exception is as follows:

"Because his Honor erred in ruling out the testimony of David Bonaparte, a witness for the defendant, as to the declarations made by the girls who sang in the show, touching the reason why they returned to his boarding house, and as to whether there was any exhibition on Thursday night and the night previous. Whereas, the testimony was competent and relevant to demonstrate, by the declaration of the actors at the time of the transaction, that there were no exhibitions on the nights in question, and the reason therefor."

This exception cannot be sustained, as the testimony was clearly hearsay.

The fifth exception is as follows:

"Because his Honor erred in refusing to charge defendant's first request to charge, which was as follows: ``There is no evidence in this case of any wantonness or wilfulness on the part of the defendant's agents, and I direct that you cannot find any verdict, in this case, for punitive or exemplary damages.' Whereas, he should have charged the same, as the acts of the defendant showed a desire to mitigate any injury that might have been caused by any default, and indicated a state of mind other than reckless or wanton."

This exception is overruled, for the reason that there was testimony tending to prove the allegations of the complaint, as to a disregard of the plaintiff's rights.

"Not only is the conscious invasion of the rights of another, in a wanton, wilful, and reckless manner, an act of wrong, but that the same result follows, when the wrongdoer does not actually realize that he is invading the rights of another; provided, the act is committed in such a manner that a person of ordinary reason and prudence would say, that it was a reckless disregard of another's rights."Tolleson v. Railway, 88 S.C. 7, 70 S.E. 311.

The sixth, seventh, and eighth exceptions were abandoned.

The ninth, tenth, and eleventh exceptions will be considered together, as they involve the same question. After his Honor, the presiding Judge, had charged the jury, the record shows that the following took place:

"Court: Is there anything further?

"Mr. Jennings: I would like to suggest that you charge the jury: When a common carrier accepts freight to be transported, it insures the safe delivery, and is bound to carry it according to contract, unless prevented by the act of God, or the public enemy.

"Court: Yes, sir; that is a correct principle of law. * * *

"Mr. Reynolds: Yes, sir; on that point, he says it is an insurer for the safe delivery of the goods, but I ask your Honor to charge that it does not undertake to insure against delay in delivery.

"Mr. Jennings: They are bound to carry out their contract.

"Court: Yes, sir."

These exceptions assign error in said ruling. It will be observed that the appellant's attorney did not contend that the defendant was not liable for an unreasonable delay, but that it was only liable, as an insurer, for the safe delivery of the goods. It seems that he has given undue significance to the word "insurer."

"The general rule as to the common carrier's liability, with reference to the goods in his possession as carrier, and regardless of any contractual exceptions, is that he is liable for all loss or destruction of, or injury to, such goods, not occasioned by the act of God or the public enemy. Therefore, where the loss is not due to the excepted cases, proof of negligence is immaterial, and the carrier cannot escape liability by proving reasonable care and diligence. In the English cases by which the rule of exceptional liability was first established, it was said that the carrier was an insurer of the goods, as against all loss or injury, not resulting from the excepted cases, and in some of the cases in the United States, the term 'insurer' is used; but nothing moreis meant by this expression than that the carrier is absolutelyliable, with only the exceptions recognized in the ruleas above stated." (Italics added.) 6 Cyc. 376.

"The rule is unquestioned that it is as much a part of a common carrier's duty to carry and deliver with reasonable promptness as it is to receive and carry." 5 Enc. of Law 244.

"At common law it has been long settled that a common carrier is responsible for the safe transportation and delivery of goods, received by him for carriage, and can justify or excuse a default only when occasioned by the act of God or the public enemy. * * * From this severe responsibility to which by the common law he is subjected, he cannot relieve himself by proof of the highest possible care on his part. Nor will his entire faultlessness excuse him, but whenever a loss from any cause other than the act of God or the public enemy, the law may be said to raise against the carrier an absolute and conclusive presumption of negligence." 4 Ruling Case Law 696-698.

The word "insurer" is used in our decisions, in the sense hereinbefore stated. The rule is thus announced in Ewart v. Street, 18 S.C.L. (2 Bailey) 157, 23 Am. Dec. 131:

"It is, perhaps, not practicable to define accurately, the sort of accident that comes under the denomination of the act of God; nor is it necessary to do so. Certainly it is notenough that there has been no negligence on the part of thecarrier, and that he has used all the precautions whichordinary prudence would suggest." (Italics added.)

The Court then proceeds to quote with approval, the following language of Lord Mansfield, in the case of Forward v. Pittard, 1 T.R. 33:

"To prevent litigation, collusion, and the necessity of going into circumstances impossible to be unraveled, the law presumes against the carrier, unless he shows it was done by the king's enemies, or by such an accident, as could not happen by the intervention of man, as storms, lightning, and tempests."

The carrier is rendered thus liable on motives of public policy. The Court uses the following language in Wallingford v. Russell, 26 S.C. 258, 2 S.E. 19:

"At common law, there is no exemption to the liability of common carriers for goods, etc., intrusted to them, except for an act of God, or of the king's enemies. They are regarded as insurers as to all else. In England, however, and in several States in this Union, including our own (South Carolina), the common law doctrine was modified to the extent of allowing a common carrier to exempt himself from this broad liability by a special contract as to certain specified causes of injury. * * * It was, however, held in all of the cases that he could not shield himself from the consequences of negligence by a contract; that his character as common carrier could not be changed by contract, only his liability to the extent of the specified exemptions was diminished. In all things else the general doctrine of common carriers applied, and especially as to negligence; and, further, that the onus was upon him to bring himself by the testimony within the exemptions mentioned in the contract."

In that case the Court also said:

"A common carrier is bound to deliver the property which he undertakes to transport at the point of discharge safe and uninjured, at the peril of liability, except where the injury has resulted from some cause excepted in a contract (other than negligence), which is a matter of defense, the onus of proving which is upon the defendant. The plaintiff has nothing to do but to show the injury, and the defendant becomes at once prima facie liable, and remains so until he shows that said injury resulted either from an act of God, the public enemies, or a cause from which he had exempted himself legally in a special contract."

The foregoing language was quoted with approval inJohnstone v. Railroad, 39 S.C. 55, 17 S.E. 512.

The ruling of his Honor, the presiding Judge, simply meant that the defendant was liable for an unreasonable delay, and is in accord with the general principle prevailing elsewhere, and with the decisions in this State.

Some of the assignments of error in the last exception (No. 12) were abandoned, and the others were not argued.

Judgment affirmed.