March 17, 1916. The opinion of the Court was delivered by Action for the denial of the plaintiff's right to have possession of his trunks. Verdict for the plaintiff for $900 punitive damages and $100 actual damages, the latter reduced by the Circuit Court to $25. Appeal by the defendant. *Page 70
History: The plaintiff is of middle age, resides at Marion, and has traveled as a commercial salesman for 19 years. He went from Walterboro to Marion, over the defendant's lines, and carried two "drummer's trunks" with him. The trunks confessedly weighed in excess of the 200 pounds free allowance for such baggage; in avoirdupois the excess was 200 pounds, and for that the plaintiff was due to pay the defendant $1.70. The plaintiff and trunks reached Marion on Saturday, and the trunks remained in the station house there nine days uncalled for. At the end of that period of time the plaintiff essayed to go from Marion to Columbia, and he presented the checks he received at Walterboro and his mileage book and requested that the trunks be rechecked to Columbia. The baggage agent at Marion demanded payment of excess fare on the trunks from Walterboro to Marion, which the plaintiff declined, and thereout this suit arose.
The appellant has argued three questions, and we shall discuss them rather than the exceptions, for they embody the exceptions; but the exceptions may be reported. The appellant's three postulates are these:
(1) The presiding Judge erred, it is respectfully submitted, in holding that the possession of an ordinary check is prima facie evidence that the excess baggage charges have been paid.
(2) The presiding Judge erred, it is respectfully submitted, in refusing to direct a verdict for defendant as to punitive damages, and in his charge to the jury relating to such damages.
(3) The presiding Judge erred, it is respectfully submitted, in the exclusion of certain testimony.
These in their order:
1. The testimony tends to show, and there is no difference about it, that on trunks like these there are sometimes put, if not generally put, two sorts of checks — one the ordinary paper model issued to a passenger who carries baggage; *Page 71 the other an excess check of a different model from the ordinary baggage check. The excess check indicates on its face the payment of the excess fare, and possibly the amount of it. It is not clear from the testimony if a duplicate of the excess check is furnished to the passenger, as is done in case of an ordinary baggage check. Rule 19, hereinafter set out, is silent on the subject. The Court asked Orr: "Does the check given to the passenger show whether the excess has been paid or not?" and the witness answered, "Yes, sir; it does, and possibly the amount." But it is not plain from this answer what check was referred to, the ordinary check or the excess check. The plaintiff testified, "I have seen checks that show excess fare, and they generally put them on." The Exhibit B, which sets out the form and contents of the excess check, indicates that there was issued on it a "strap check," and a "duplicate check," presumably one for the trunk and one for the passenger.
The rule of the company on the subject of excess checks is as follows:
"(19) Weighing Baggage and Collecting Excess Charges. — Agents must not accept statements of passengers as to weight of their baggage. Unless agent is positive the weight of a passenger's baggage is within the regulation allowance, he must weigh it, and collect proper excess for all over-weight. The amount collected must be plainly indicated on the excess baggage check. Should an agent forward baggage weighing in excess of the free allowance without making proper collection, he will be charged with the amount he should have collected. Receiving agents will weigh all baggage when in doubt as to whether same is over free allowance, and if found overweight and forwarding agent has not assessed proper excess charge, collect proper charge."
In the instant case, without controversy, there was issued to the plaintiff at Walterboro only the ordinary baggage check, with no markings on it of excess weight or payment of money. There is no evidence that the plaintiff knew of *Page 72 the rules of the company. The plaintiff testified that at Walterboro he paid the agent $4.50 for an ordinary passenger ticket from that point to Marion, and $1.70 excess fare on his trunks for the same journey, and that the agent issued to him the two ordinary baggage checks which he presented at Marion. The agent at Walterboro swore to a totally different transaction. He said the plaintiff was accompanied by a lady; that he presented a South Carolina mileage book and bought also a cash ticket from Walterboro to Marion; that he presumed the two were traveling together, and without looking at their baggage he issued to them two duplicate checks, presumably one for the plaintiff and one for the lady, and a clerk put the originals on the trunks; that plaintiff gave the cash ticket to the lady; that the witness did not see the trunks and did not ask if there was any excess, because he did not think there was any. The plaintiff flatly denied this account of the transaction. The charge of the Court was made with reference to this testimony, and the issues of fact made by it.
If the trunks had been ordinary passenger's baggage, then the check that was issued would have confessedly constituted only the prima facie evidence of the receipt of the trunk by the defendant. Dill v. Railroad, 41 S.C. L. (7 Rich. Law) 158, 62 Am. Dec. 407. The case is not altered that the trunks were "drummer's trunks." Fleischman v. Railroad, 76 S.C. 237,56 S.E. 974, 9 L.R.A. (N.S.) 519. But about the custody of the trunk there is no issue; the carrier admits the receipt, the carriage, and the delivery of the trunk at Marion.
The issue here is: Was the excess fare paid? Manifestly, if as a fact it was paid, then checks cut no figure in the case. If it be true, as the carrier contends for, that by rule of the company and by custom of the company there ought to have been put on the trunks an excess check, and that its absence is prima facie evidence of nonpayment (and upon that we need express no opinion), yet, if *Page 73 that was not done, and if nevertheless the plaintiff did pay the excess fare, then the fact must overcome the presumption; that is to say, the rights of people are not always dependent upon appearances.
The Court charged the jury that "the plaintiff has got no case unless he paid that excess for transportation of his baggage." It would be unpardonable to conclude that, even though a passenger had paid his excess, the absence of paper evidence of it, in a case like this, should defeat his right not to pay a second time. The prima facies, therefore, went out of the case, and the bald issue was made, independent of checks: Did the plaintiff pay the excess at Walterboro? The plaintiff did not rest upon the effectiveness of a check to fix his right. He testified in the first instance to a transaction he saw to fix his right; he testified to payment.
2. Upon the second issue, that of the allowance of punitive damages, we also concur with the Circuit Court. There is no need to repeat the testimony before recited, though it is relevant to the issue of law now considered. The theory of the defendant was, as testified to by the witness, Kirton, the Walterboro agent, that the plaintiff had gotten his trunk carried through by a false pretense. That was the theory of one of the appellant's counsel; for in his oral argument before this Court he characterized the plaintiff as a "dead-beat," and in the printed argument it is said the plaintiff had "the ineradicable disposition to seek an advantage against the defendant company." The unvarnished issue for the jury was: Did the plaintiff consciously use, to get the trunks through without the payment of excess fare, a mileage book for himself and a cash fare ticket for a lady who merely happened to be going the same route, or did he buy a cash fare ticket for himself and pay the excess fare on his trunks? It might have been asked what legal right did the carrier have to charge excess if the two trunks went through, as they say, on two paid for passenger fares. *Page 74
The appellant's counsel further contend that it was the duty of the plaintiff at Marion to make a true explanation to the defendant's agents, or at least to give some reasonable account of the transaction to guide the defendant's servants in their action. We think that is true, though that issue was not made before the trial Court. But the testimony on this particular phase of the case is not all one way; it tends to sustain the view of both sides. So far as the record goes, the plaintiff was not asked on the direct examination whether or not he had stated his side of the case to the agents at Marion; he testified directly, "I don't owe you any excess from Walterboro, and won't pay it." He further testified directly that one of the agents said "there was nothing on those checks to show that the excess had been paid," and that the witness answered, "That is none of my business." On the cross-examination the plaintiff was not asked if he had told the agents at Marion the true transaction.
The witness, Orr, testified directly that the plaintiff refused to pay excess at Marion, "on the ground that the agent at Walterboro checked the baggage and gave me the checks," and that the witness, Orr, then replied, "If that is the only reason you have, we will have to insist that you pay these charges;" and the witness further testified that Davis said, "I have other reasons which I refuse to give." On cross-examination Orr told plaintiff's counsel, "Mr. Davis absolutely did not tell me that he had paid the excess."
The witness, Andrews, testified: "I asked Davis did he pay any excess on them. He never told me whether he did or not." On the reply the plaintiff was asked this question: "Q. Mr. Davis, it has been testified here by Mr. Orr and Mr. Andrews that you refused to say whether you had paid the excess or not, and that as you went out you said: `I have other reasons which I refuse to give,' is that correct? A. Not a word of truth in it." Had the plaintiff testified in chief about this, a reply would not have been necessary. *Page 75
Thus the square issue of fact was made whether Davis did tell the agents that the excess had been paid. It may be Davis did not tell them; it may be he did. Of the truth the jury, which knew the witnesses was and is the only judge.
If Davis did inform the agents of the true facts, if they nevertheless without further inquiry from reliable sources did hold the trunks and exact the excess charges, and if the excess charges had been in fact paid, and if the theory of the defendant's servants was that the plaintiff's actions had been in bad faith, and they were not, then the jury might find punitive damages. All these matters were put in issue. The learned Judge, who saw the witnesses, had the power, and it was his duty, to set aside or to reduce the verdict had it been manifestly wrong. He did neither, and we concur in his action.
3. The third postulate of the appellant has reference to the exclusion of certain proffered testimony of the witness, Orr. On the redirect examination he was asked this question: "It has happened since on one particular occasion that Mr. Davis' baggage came through without the excess checks. This was since this suit was commenced. Q. You reported it to the counsel of the company? (Objected to, and objection sustained.)"
The printed argument of counsel is:
"Indeed, it was a most convincing circumstance, not only upon the question as to whether plaintiff paid the excess in the case at bar, but also to show the ineradicable disposition of the plaintiff to seek an advantage against the defendant company."
We think the testimony was plainly irrelevant and incompetent. The answer to the question would have raised other and independent issues; in fact, another case of like import as the one at bar. *Page 76
We are of the opinion that the judgment below must be affirmed.
It is so ordered.
MR. CHIEF JUSTICE GARY and MESSRS. JUSTICES WATTS and FRASER, concur in the opinion of the Court.
MR. JUSTICE HYDRICK concurs in affirming the judgment for actual damages, but thinks the judgment for punitive damages should be reversed.