This is an action for damages. The complaint (omitting the formal parts thereof) is as follows:
"3. That on or about the 15th day of May, 1916, the plaintiff delivered to the defendant, Northwestern Railroad Company of South Carolina, at Bloomville, S.C. three cars of lumber, the property of the plaintiff, and of the aggregate value of four hundred and fifty-two and 31-100 dollars, consigned to Bay Lumber Company at Norfolk, Va., which the said defendant received and agreed to deliver to the said consignee at Norfolk, Va., in consideration of the payment of its usual freight charges.
"4. That during the transit of the said three cars of lumber, the plaintiff ordered the defendant, Northwestern Railroad Company of South Carolina, to divert the said three cars of lumber from the Bay Lumber Company at Norfolk, Va., to Barker-Bond Lumber Company, Brooklyn, N.Y., and the defendant, Northwestern Railroad Company of South Carolina, agreed to so divert the said three cars of lumber, and to deliver them to their new consignee at Brooklyn, N Y, in consideration of the additional freight charges for such service, and plaintiff is informed and believes that the defendant, Northwestern Railroad Company of South Carolina, diverted the said three cars of lumber as directed while in the possession of the defendant, Atlantic Coast Line Railroad Company, the last mentioned company agreeing to such diversion, and undertaking to perform its duty in that behalf. *Page 479
"5. That notwithstanding such agreement of diversion and to forward to their new consignee the plaintiff's said lumber, the defendants so negligently conducted themselves in that behalf that the said three cars of lumber were never forwarded to the new agreed consignee, but, according to plaintiff's information and belief, were allowed to remain upon demur rage at Norfolk, Va., without any notice to the plaintiff or his new consignee, until about the 3d of June, 1916, and thereafter plaintiff and his consignee repeatedly endeavored to have the cars forwarded as agreed upon, and plaintiff is informed and believes, permitted the said cars to remain upon demur rage in possession of the defendant, Atlantic Coast Line Railroad Company, until the value of the said lumber was exhausted by such charges, and were sold in November, 1916, to satisfy the same, to plaintiff's great damage four hundred and fifty-two and 31-100 dollars."
The defendant, Northwestern Railroad Company, admitted that it received for shipment the three cars of lumber set out in the complaint, and denied the other material allegations thereof.
"The appellant, the Atlantic Coast Line Railroad Company, denied that it agreed to divert the shipment of lumber, and alleged that it sold the same in due accordance with law for accumulated freight and demur rage charges, and further alleged that even had it agreed to divert the lumber, such diversion would have been improper and illegal, and in violation of its legal duty under its duly filed tariffs, as filed in accordance with the Federal Interstate Commerce Act, and set up and invoked the protection and benefit of such Federal acts; and set up as a counterclaim the deficit of the proceeds of the sale of the lumber, and the accumulated charges, and demanded judgment for $202.32."
The jury rendered a verdict in favor of the plaintiff for $452.31; also a special verdict that, as between the two defendants, it should be paid by the appellant. *Page 480
There was a motion for the direction of a verdict, but it was properly overruled, as there was testimony tending to prove the allegations of the complaint that the appellant failed to give such notice as was required under the circumstances.
Conceding that a diversion of the shipment, as alleged in the complaint, would have been in violation of the regulations under the Federal laws (Act February 4, 1887, c. 104,24 Stat. 379), this would not, however, be conclusive of the case.
The question upon which the case turns is whether the appellant had the right to keep the cars in its possession for an unreasonable length of time without giving notice to the plaintiff that it refused to divert the cars, and that they were still in its possession, thereby subjecting the plaintiff to a demur rage account, exceeding in amount the total value of the lumber by $202.32.
We do not deem it necessary to cite authorities to sustain a proposition that shows upon its face that it is against justice and equity.
Even if his Honor, the Circuit Judge, was in error in some of his rulings, they were not prejudicial to the rights of the appellant.
For these reasons I dissent.
*Page 481MR. JUSTICE WATTS concurs in the dissenting opinion.