November 18, 1911. The opinion of the Court was delivered by This action was brought in a magistrate court to recover $16.00 alleged value of a shipment of goods, consisting of one sack of sugar, one sack of rice and one box soap, and fifty dollars penalty for failure to adjust the claim within the time required by law. The magistrate gave judgment for $66.00, the full amount claimed, and on appeal therefrom the Circuit Court, Hon. W.C. Davis, special Judge, presiding, affirmed the judgment, *Page 84 holding that no prejudicial error had been committed and that substantial justice had been rendered.
It appears that the goods were shipped at Camden, S.C. by the Camden Wholesale Grocery Company, on March 1, 1909, consigned to plaintiff at Claremont, S.C. and were destroyed in the fire which burned up the Claremont depot and contents on March 9, 1909.
The bill of lading stipulated that "the amount of any loss or damage for which any carrier becomes liable shall be computed at the value of the property at the place and time of shipment, etc." Granting that such a stipulation is binding on a shipper or consignee, there was some testimony that the value of the goods at the place of shipment was equal to the amount claimed therefor and the Circuit Court held that the testimony was ample to show that fact. It is true the invoice of the goods showed the invoice price to be $15.15, but the invoice price is not the conclusive test of value. The goods may have been worth more or less than the invoice price, dependent upon the circumstances. Value at the place of shipment means value when delivered to the carrier under contract of shipment and would certainly allow freight to be added to the invoice price. Kelly v. Southern Ry., 84 S.C. 252,66 S.E. 198; DesChamps v. Railroad Co., 84 S.C. 360,66 S.E. 414.
The freight paid was thirty cents. But the plaintiff testified that the goods were worth more than $16.00 in Camden, S.C. the place of shipment. The conclusion of the Circuit Court that the value of the goods at the place of shipment was as great as claimed, being supported by the evidence, is final, hence the first, second, and third exceptions which depend upon a contrary view of the facts, cannot be sustained.
The admission of testimony as to the market value of the goods at Claremont, S.C. the point of destination, which *Page 85 is the basis of the fourth and fifth exceptions, can only be sustained as bearing somewhat remotely on the question of value at the place of shipment, since the two places are not far apart and the conditions creating value may not be materially different, but, waiving this, there was no prejudice in the ruling, since the Circuit Court has finally adjudged that the evidence showed the value at the place of shipment sufficient to support the claim as filed.
The magistrate refused to charge certain requests of defendant to the effect that the carrier would not be liable for the value of the property at the place of shipment and that the consignee cannot add to this the value at Claremont, the destination, and in addition thereto the freight charges. The requests were faulty in not making it clear that in estimating value at the place of shipment the freight charges may be taken into consideration, as shown in the Kelly and DesChamps cases, supra. Hence the sixth and seventh exceptions cannot be sustained.
The defendant requested the magistrate to instruct the jury as to the rule of liability with respect to a gratuitous bailee, and that such rule required the exercise of only slight care on the part of the bailee and imposed liability for only gross negligence. The magistrate modified the request so as to hold the carrier to the duty of ordinary care. There was no testimony to show that the defendant gave notice that it would no longer hold as warehouseman and would not insist on charges as such, hence there was no basis in the testimony for instruction on the subject of a gratuitous bailee. Brunson Boatwright v. Railroad, 76 S.C. 13, 56 S.E. 538; 9 L.R.A. (N.S.) 577, note.
Whatever liability existed against defendant in this case was either as carrier, liable as an insurer, or as warehouseman liable for failure to exercise ordinary care. Hence the charge as given was too favorable for defendant, and the eighth exception must be overruled. *Page 86
The refusal of the magistrate to charge defendant's fourth request, which is the basis of the ninth exception, does not warrant reversal, because there was no testimony tending to show that the defendant's agent agreed to hold the goods in the depot as a mere matter of personal accommodation and convenience and at the risk of the consignee, contrary to the rule of the company.
The fact that the plaintiff paid the freight charges and signed the waybill, without immediately removing the goods, which had arrived a few days before the fire, would not tend to show that defendant was not liable as warehouseman for negligence.
The refusal to submit the matter of contributory negligence to the jury of which complaint is made in the tenth exception, affords no ground for disturbing the judgment, as there was no testimony of any such negligence of plaintiff.
The fact that the goods may have remained in the depot from March 4 to March 9, after plaintiff had paid the freight charges and signed the waybill, does not tend to show contributory negligence of the plaintiff. This may tend to show that defendant's liability as common carrier had ceased and that the liability was only as warehouseman.
We do not understand that the Circuit Court held defendant liable as common carrier as complained in the eleventh exception. The conclusions of the Circuit Court were that substantial justice has been done between the parties, and if there was error committed by the magistrate it was harmless. The judgment may well be rested on the theory of the defendant's liability as warehouseman.
The judgment of the Circuit Court is affirmed. *Page 87