April 21, 1921. The opinion of the Court was delivered by The first ground of the motion for a directed verdict was as follows:
"Because there is no proof whatever that the loss or damage occurred on defendant's line, or to plaintiff's goods, while in defendant's possession."
The defendant was the terminal carrier, and the presumption was that the goods were damaged while in its possession. Willett v. Railway, 66 S.C. 477, 45 S.E. 93;Mule and Horse Co. v. Railway, 99 S.C. 470, 83 S.E. 599;Cigar Co. v. Steamship Co., 101 S.C. 429, 85 S.E. 1060;Southern Textile Co. v. Railway, 114 S.C. 141,103 S.E. 475.
The second ground of the motion was as follows: "Because the rule in South Carolina, that loss or damage will be presumed to have occurred on the terminal carrier, in the absence of proof to the contrary, has been superseded by the Carmack Amendment (U.S. Comp. St. §§ 8604a, 8604aa), and the federal decisions thereunder when applied to goods in interstate commerce."
The defendant's attorney relies upon the decision, inCharleston W.C. Ry. v. Varnville Furniture Co.,237 U.S. 597, 35 Sup Ct. 715, 59 L.Ed. 1137, Ann. Cas. 1916D, 333. The question now under consideration was not involved in that case, as is clearly shown by the language of the Court, to wit:
"The penalty, the only matter that we are now considering, was exacted for the failure to pay both claims, within *Page 148 40 days, irrespective of the question whether adequate investigation had been possible, as required by the Interstate Commerce Commission's rulings Nos. 462, 236 and 68."
As the United States Supreme Court has not rendered a decision, contrary to the rulings of this Court, upon the question involved, the conclusion necessarily follows that his Honor the presiding Judge erred in directing a verdict in favor of the defendant.
Reversed.
MR. JUSTICE COTHRAN: I concur upon the ground that the Supreme Court of the United States has held in the case of Railway Co. v. Ranking, 241 U.S. 319, 36 Sup. Ct. 555,60 L.Ed. 1022, L.R.A. 1917A, 265, that the Carmack Amendment merely imposed a liability upon the initial carriers for a loss occurring on the line of a connecting carrier, and has not changed the common-law doctrine in respect to a carrier's liability for loss occurring on its own line. This latter fact may be established either by positive evidence or by the unrebutted presumption referred to in the opinion herein. See, also, Ry. Co. v. Collins, 235 Fed. 857, 149 C. C.A. 169; Erisman v. Railroad Co., 180 Iowa 759,163 N.W. 627. It not appearing from any authority cited that this rule of presumption does not obtain in the Federal Courts, it is not shown that its application is prejudicial. *Page 149