Opinion
12586
February 8, 1929.
Before RICE, J., Bamberg, July, 1928. Affirmed.
Action by S.W. Copeland against the American Railway Express Company. Judgment for defendant, and plaintiff appeals.
His Honor, the Circuit Judge, affirmed the judgment of the magistrate, in the following order:
"This case comes before me on appeal from the magistrate at Bamberg, S.C. who tried the same on the 19th day of June, 1928, without a jury.
"At the July, 1928, term of the Court of Common Pleas for this County, the attorneys for both sides argued their contentions, and in order to make an intelligent decision of the matter it will be necessary for me to state the facts briefly:
"It appears that on the 12th day of July, 1927, the Orangeburg Paper Company, of Orangeburg, S.C. delivered to the defendant above named a package of merchandise for shipment to the plaintiff at Ehrhardt, S.C.; that some time thereafter the said Orangeburg Paper Company made demand on the plaintiff in this cause for payment for the said merchandise, and was then informed by the plaintiff above named that the said shipment had not been received, whereupon the Orangeburg Paper Company, some time in August, 1927, filed claim with the express company for the value of the said merchandise, but that after certain investigations this claim was abandoned, and the Orangeburg Paper Company filed suit in the magistrate Court against the plaintiff in this case for the value of the said merchandise, and accordingly judgment was entered up in its favor therefor; that thereafter the plaintiff in this case, to wit, February 20, 1928, filed claim with the defendant for the value of the said merchandise, and after the lapse of 30 days after the filing of the said claim brought the action above entitled.
"It also appears that in the claim as filed by the plaintiff on the 20th day of February, 1928, it stipulates that it is for a shipment delivered to the carrier on August 13, 1927, a month after the shipment was actually delivered to the defendant for transportation to Ehrhardt, S.C.
"It appears to me that the holding and finding of the magistrate that after the abandonment of the claim by the Orangeburg Paper Company, the situation was left in the position as if no claim had been filed, and can in no wise inure to the benefit of the plaintiff herein, was proper; also, it appears that the plaintiff herein not having filed any claim before the 20th day of February, 1928, is barred under the terms and conditions of the express receipt of contract of carriage; this being the case the penalty falls, because the law expressly provides that without a recovery of the full value of the claim no penalty can be recovered.
"I also find and hold that the claim of the plaintiff, under the terms of the contract of carriage, should have been filed within six months from the date of the shipment, and that all negotiations which may have been had between the plaintiff and the carrier would in no way stop the running of the time specified therein. Allen v. Davis, Director General of Railroads, 125 S.C. 256, 118 S.E., 614.
"It appears to me that the findings and holdings of the Magistrate, as stated in his report filed in the cause, were proper, and it is thereupon ordered, that the judgment of the Magistrate be and the same is hereby confirmed."
Mr. E.H. Henderson, for appellant, cites: Regulation as to prompt notice of loss or damage does not apply where no delivery: 91 S.C. 506; 4 S.C. 135; 10 C.J., 335. As to service of claim for loss: 10 C.J., 337. Actual notice of loss by defendant makes filing of claim by plaintiff unnecessary: 91 S.C. 506; 84 S.C. 252; 10 C.J., 338.
Mr. W.E. Free, for respondent, cites: Stipulation requiring filing of notice of loss within certain period upheld by Courts: 115 S.C. 224; 120 S.C. 200; 125 S.C. 256.
February 8, 1929. The opinion of the Court was delivered by
This is an action for alleged nondelivery and loss of goods. It was tried in the Court of Magistrate E. Dickson, Esq., of Bamberg County, and resulted in a judgment for the defendant. The plaintiff appealed to the Court of Common Pleas, and there Judge Rice affirmed the judgment of the magistrate. Plaintiff has appealed to this Court.
This is an action at law, and we are bound by the findings of fact on the part of the magistrate, approved by the Circuit Judge.
We find no error of law in the order of the Circuit Judge. It is affirmed and will be reported.
MR. CHIEF JUSTICE WATTS and MESSRS. JUSTICES COTHRAN and STABLER concur.
MR. JUSTICE CARTER did not participate.