Mutual Lumber Co. v. Southern Railway Co. , 100 S.C. 415 ( 1915 )

April 7, 1915. The opinion of the Court was delivered by The appeal is by the defendant and from an order of the Circuit Court. Thereby a portion of the answer was stricken out upon a motion by the plaintiff charging that it was irrelevant and redundant.

All told, there are five persons concerned in the transaction, though only two such are parties hereto.

The railway company carried from Pomaria, in this State, to Norfolk, Va., a lot of timber alleged to be worth $281.60. The timber was sent from Pomaria by one Shealy and it was sent to the Mutual Lumber Company (the plaintiff) at Norfolk.

From the plaintiff the timber is alleged to have gotten into the possession of the Bruner Company. From the Bruner Company the timber is alleged to have gotten into the possession of a creosoting company.

The plaintiff, the Bruner Company, and the creosoting company all reside in Norfolk, and so must the defendant also.

The delict charged was also done at Norfolk, but the action is brought here.

Shealy, of Pomaria, is in no way involved in the transaction.

It does not appear if the plaintiff paid Shealy for the timber; the assumption is it did.

The wrong charged, without setting out the three causes of action alleged, is that the timber reached Norfolk and the defendant there converted the same to its own use; how, it is not alleged. The plaintiff demanded judgment for the value of the timber; also $1,000.00 for a wilful tort; also $1,408.08 for the penalty imposed by our statute.

The defendant admitted the receipt and carriage of the timber from Pomaria to Norfolk; but denied the alleged wrongful act of conversion.

The defendant also plead the words, which have been stricken out. Those words were inserted in the answer to each of the three causes of action.

The exceptions make only three issues which it is necessary to consider at this stage of the procedure, and they are these: Are the words irrelevant, are they redundant and did the Judge abuse his discretion in striking them out: The other questions made by the exceptions involve the merits and may be made at the trial of the cause.

The words will be reported; they are involved in statement, and their meaning is not readily apparent.

But it becomes manifest on reflection that the defendant in fact alleged this: That the timber was sent by Shealy to Norfolk to the plaintiff and it reached that destination; that the plaintiff attached a bill of lading to a draft on the Bruner Company and an order on the defendants to deliver the timber to the Bruner Company; that the plaintiff notified the Bruner Company of its action; that the Bruner Company ordered the defendant to deliver the timber to the creosoting company; that the timber was so delivered; that the timber was defective and the creosoting company so advised the Bruner Company; that the Bruner Company then declined to pay the draft the plaintiff had drawn on it against the timber.

Manifestly, if this be true, the defendant has done the plaintiff no wrong, but has done with the timber that which the plaintiff directed it to do.

The allegation so made is, therefore, not irrelevant, because it makes an issue which has vital connection with the plaintiff's cause of action. Pomeroy's Code Remedies, section 567.

The plaintiff's counsel maintains that "this paragraph of the answer stated facts inconsistent with the facts stated by the plaintiff; but the facts do not constitute a defense."

If the facts alleged by defendant be inconsistent with those alleged by the plaintiff, and about the same transaction, they may constitute a defense.

The plaintiff's counsel, moreover, concedes that "if the carrier (defendant) can show that the delivery of freight was upon an order of the consignee (plaintiff), it cannot be held liable, and such proof can be shown under the general denial."

That is a concession that the defense, which is now sought to be plead by the exceptionable words, can be made in exoneration of the defendant; but that such defense may be proven under the general denial which is plead; and there need not be made the exceptionable plea, and because that plea is redundant.

The plaintiff's counsel admits, therefore, that the facts alleged in the exceptionable plea may be proved under the general denial.

That truth alone ought not in every instance to render the plea so redundant as to be stricken out.Alexander v. DuBose, 75 S.C. 29, 52 S.E. 786.

The same section of the Code of Procedure which empowers the Court to eliminate redundant pleas empowers it also to require the plea to be made more definite. Section 210. In both cases the Court may strike out or make full.

The two provisions should be co-ordinated so that one shall not impinge upon the other.

The exceptionable plea here might have been accepted as a distinct advantage to the plaintiff; it may now enquire of the Bruner Company and the creosoting company if the things alleged be true; there will now be no surprise about those matters at the trial.

But striking out the allegation will work no harm to the defendant; their insertion in the answer was not necessary to protect the rights of the defendant; the facts recited in the allegations are the evidences only of defendant's lawful conduct; the Court below regarded them as redundant and struck them out in the exercise of a wise discretion, and we shall not gainsay it.

The appeal is dismissed.