I think that the judgment in this case should be affirmed upon the ground that there was sufficient relevant and admissible evidence tending to establish the plaintiff's cause of action, upon which the jury were to pass. And upon the further ground that the exceptions do not comply with the rules of this *Page 4 Court in pointing out specifically the testimony of the witness Boller to which exception is taken.
The evidence tends to show: That on April 26, 1920 (Monday), the plaintiff delivered to the defendant at Dale, S.C. 192 baskets of lettuce and 186 baskets of romaine, to be transported to consignees at New York, the selling agents of the plaintiff, for which the defendant issued its standard form bill of lading; that the car did not leave the initial shipping point until Wednesday, the 28th, and did not arrive in New York until Monday, May 3d, seven days from its delivery for shipment; that the usual time was three days between Dale and New York; that the car was insufficiently iced; that on account of the delay, the goods, perishable in their nature, where delivered in New York in a damaged condition, valued at 50 per cent.; that lettuce was selling at $3 per basket and romaine at $3.50 in New York. There was no controversy as to the facts that the goods were loaded in good condition and were received in bad condition. If they had been delivered in good condition, they would have been worth:
192 Baskets of lettuce at $3 ..................$ 576 00
186 baskets of romaine at $3.50 ............... 651 00
________
$1,227 00
50 per cent. loss .............................$ 613 50
The verdict was for plaintiff ................ $ 565 00
The exceptions complain of error only as to the admission of the testimony of a witness Boller, an employee of the consignees in New York. He testified positively, of his own knowledge, that he personally handled the shipment; that it was damaged 50 per cent. on account of the delay; the market price of lettuce and romaine as above stated. It is difficult to ascertain what part of his testimony was objected to or covered by the exceptions, and the burden is not upon the Court to ferret that out. Rule V. subd. 6.
MR. JUSTICE MARION concurs. *Page 5
CONCURRING OPINION IN CASE B.