"If a shipper comes into court and proves by the greater weight of the evidence that there was an unreasonable delay in the delivery of his goods at the point of contract destination, that itself is prima facie evidence of negligence that is, some evidence of negligence and it must be overcome by the carrier, if he would escape responsibility by the greater weight of the evidence

in the case. *

*

"I charge you in this case that the plaintiffs have come into court predicating their cause of action on negligence of the defendant, or one of its connecting lines, and the burden of proving that allegation by the greater weight of the evidence is upon them, because they have alleged it; but if they have proved to your satisfaction, by the greater weight of the evidence, that there was an unreasonable delay, that the shipper suffered loss as a proximate result of that unreason able delay, unless the defendant has come into court and shown by the greater weight of the evidence that that delay was not caused on its part by any negligence, or any negligence of its connecting lines, you will find for the plaintiffs." In this there was no prejudicial error. It is the judgment of this court that the judgment of the circuit court be affirmed.

FRASER and GAGE, JJ., concur.

HYDRICK, J. I think there should be a new trial for the error complained of in the charge as to the burden of proof.

WATTS, J. (dissenting). This is an action for an alleged injury of plaintiffs by reason of the alleged negligence and carelessness of the defendant in transporting two carloads of beans consigned to be sold in the New York markets. They were delayed in carriage so as to devolve upon the plaintiffs a loss. Had they been delivered on time they would have sold for $369.75 net, but by the delay they sold only for $37.40 net. The case was tried before Judge Prince and a jury at the April term of the court, 1915, and at the conclusion of the testimony a motion was made by the defendant for a directed verdict in its favor, which was refused, and the case submitted to the jury, which resulted in favor of the plaintiffs.

After entry of judgment defendant appealed. The second ground of appeal is:

We are inclined to the opinion that a verdict should have been directed as asked for, the plaintiffs based their action upon negligence, and the mere fact that the beans did not reach their destination on schedule time and the mere fact that trouble occurred in the equipment of the cars used for transporting the property raises no presumption of negligence. The only inference that can be drawn from the evidence in the case is that while the shipment was in transit between Lake City, S. C., and Jersey City, N. J., was the bursting of a brass in the case of one of the cars, and to the appearance of what is described as a "shell tread" wheel in the case of the other car. The evidence shows either of these conditions are liable to occur at any time in the movement of the cars, notwithstanding the highest degree of care shall have been exercised in the preparation of the equipment and its inspection. As it was one car reached Jersey City 12 hours late and the other 24 hours late according to schedule time. At times accidents will happen to machinery notwithstanding the highest degree of care in its manufacture and inspection. Notwithstanding the fact that in the transportation of a passenger the common carrier is held to the highest degree of care if there was a delay of several hours in the passenger reaching his destination by reason of the cars being delayed, by reason of a "hot box," or something like it, and this fact alone appeared, the court would hardly award him damage for delay alone.

The mere happening of the accident in the case at bar raises no presumption of negligence on the part of the defendant so as to entitle the plaintiffs to recover. There is neither allegation nor proof that the property consigned was destroyed or injured; only that the plaintiffs sustained a loss by a drop in the market by reason of the defendant's failure to run its train on schedule time. It is impossible to run passenger trains or freight trains at all times according to its schedule. There must be no unreasonable delay. The evidence shows in (2) His honor erred, it is respectfully submit- one car a delay of 12 hours and the ted, in not directing the jury to find a verdict for other car a delay of 24 hours. The dethe defendant, upon motion made by defendant at the close of the testimony. He should have fendant was not insuring its schedule, and granted the motion so made, because: (a) The the fact that the goods were safely transcomplaint is based upon an allegation of negli- ported and delivered in good condition, notgence, and because there was no evidence intro- withstanding there was a delay, does not enduced tending to support this allegation, the mere fact that the beans did not reach desti- title the plaintiffs to recover by reason of nation at a particular time, and the fact that a drop in the market. There is nothing in trouble with the equipment, of the character testified to, occurred in transit, not being sufficient to tend to show negligence; (b) a carrier, by the law as announced by the trial judge, is not an insurer against delay, and because the delay in this case is shown by all the testimony was due to causes beyond the control of defendant, which could create liability only in case the liability of defendant was that of an insurer; (d) under the stipulations of the bill of lading in reference to defendant's obligation to deliver promptly, there was no possibility of liability on account of the character of the handling and delivery as dis

the case to show that the defendant failed to run its train on schedule time by reason of its failure to exercise due care and diligence to guard against delay, or that there was any fault or negligence on its part to deliver the goods consigned to its care, at the proper place on schedule time. The fact that the train was delayed and failed to reach Jersey City on schedule time was not itself sufficient to raise such a presumption

that the amendment in the complaint had taken
defendant by surprise, and was correct in after-
wards granting a new trial.

Cent. Dig. § 168; Dec. Dig. 83.]
[Ed. Note.-For other cases, see New Trial,

MOTION

3. APPEAL AND ERROR 1212(3)—REMAND—
JURISDICTION OF LOWER COURT
FOR NEW TRIAL.

Where there was a verdict for the plaintiff, circuit court for a new trial was granted on the and the defendant's motion on the minutes of the ground of error in allowing plaintiff to amend his complaint, the circuit court on remand will have no jurisdiction to determine the other grounds of the motion.

Error, Cent. Dig. § 4713; Dec. Dig. 1212(3).] [Ed. Note.-For other cases, see Appeal and Gage, J., dissenting.

Appeal from Common Pleas Circuit Court of Florence County; S. W. G. Shipp, Judge.

to recover. They must have known that the schedule of any freight train is not insured. Under the bill of lading issued in the case, which was the contract between the parties, It provided for loss, injury, or damage to property shipped. There was no loss of property; no injury or damage to the property shipped. The plaintiffs were injured in a drop in the market by the delay in the shipment not reaching its destination on schedule time. Under the facts in the case defendant was not required to use extraordinary diligence to deliver the goods on schedule time; they made no contract to that effect. The loss sustained was not for a failure to deliver the article nor an injury to the article, but for a failure to deliver on the published or informed schedule. The defendant under all of the circumstances in the case used ordinary diligence, and cannot be held for a drop on the price by reason of the delay. It would be a hardship to hold a common carrier liable for a delay that occurred by reason of its failure to run its freight train on its schedule time when the delay occurred through something unexpected that turns up. They are responsible for WATTS, J. [1] There is no doubt that loss or damage, for injury to property in the defendant was taken by surprise, and to their possession, for transportation, but they allow the trial to proceed under such circumcannot he held liable for a drop in the mar-stances is simply to allow the plaintiff when ket unless it is shown that the delay was he fails to make out his case by the specifiunreasonable on their part in the absence of cations of negligence set out in his complaint, any contract between them to the contrary. or when they are met by evidence of defendThe only inference that can be drawn from ant, and under some view of the evidence the evidence in the case was that the articles a new and independent act of negligence is consigned were transported with all reason- established to amend so as to conform to the able speed, and that they were delivered in proof would work untold prejudice and wrong good condition, and the only loss plaintiffs to the defendant.

sustained was to have to sell on a different

market from the day they anticipated. To
fix the liability of loss under such circum-
stances was never contemplated between the
parties when the shipment was made, and
would be extending the rule beyond reason to
allow recovery under such circumstances.
I think the judgment should be reversed.

(105 S. C. 385)

SCOTT v. ATLANTIC COAST LINE R. CO. (No. 9512.)

(Supreme Court of South Carolina. Sept. 12, 1916.)

1. PLEADING 237(8) CAUSE OF ACTION.

In a railroad conductor's action against his employer for personal injury, where the defendant, under the pleadings, might have shown as a complete defense that plaintiff was injured in a different way than that alleged, the allowance of an amendment to the complaint so as to conform to the proof and allege a new and independent act of negligence, to defendant's surprise, was error.

[Ed. Note. For other cases, see Pleading, Cent. Dig. § 608; Dec. Dig. 237(8).] 2. NEW TRIAL 83-GROUNDS-SURPRISE.

Action by Otis K. Scott against the Atlantic Coast Line Railroad Company. Judgment for plaintiff. From an order granting a new trial, plaintiff appeals. Affirmed.

J. W. Ragsdale and Whiting & Baker, all of Florence, for appellant. F. L. Willcox, of Florence, for respondent.

Under

The defendant was called upon to answer certain specifications of negligence. the pleadings it would have been justified in showing that it did injure the plaintiff, but in a different way than that alleged, and this would have been a complete defense. To allow the amendment asked for under

the circumstances of the case would be farreaching in its effect and bring about in every case a motion to amend after the testimony was in so as to introduce a new and independent specification of negligence. The defendant would have to prepare a defense not to meet the specifications of negligence set out, but all manner of conjectural negligence that could be imagined and retained in the mind of the plaintiff's attorney until he got ready to spring it, and ask for an amendment after all the evidence was in.

[2, 3] Judge Shipp was in error in allowing the amendment, and not withdrawing case from the jury when he was informed it took counsel for defendant by surprise, and was correct afterwards in granting the new trial. Neither do I see how he has juris

diction to hear and determine the other The trial court was in error in not withdraw. grounds made for a new trial. This court ing the case from the jury when he was shown could remand it to him to ascertain what

sel said. The unsworn statement of counsel | didn't go back to test the cars, but I applied the (Mr. F. L. Wilcox) satisfied the court, and, we have no doubt, satisfied the plaintiff's counsel as well. The plaintiff's objection to the amendment was, not to the method of the proof, but to the conclusiveness of the proof. The plaintiff's counsel said there and here that the circumstances showed that the defendant's counsel could not as a matter of law have been surprised. We are therefore of the opinion that under the circumstances of this case the plaintiff waived the administration of an oath to the counsel who aver-him about that, and I also notified him at red his surprise.

We are therefore of the opinion that the amendment was allowable under the case of Booth v. Langley, 51 S. C. 412, 29 S. E. 204, rather than it was disallowable under the cases cited by the circuit order. We are also of the opinion that the defendant was as matter of law not misled by the amendment; and that the amendment did not substantially change the claim of the plaintiff.

brake. There was no indication of trouble with stopped, we pulled up to the station, and there the brakes. At Lynchburg, the first time I the air brake being all right, and the pass track being blocked, and we being required to stay there for No. 54, we backed up in the house track, and in backing up the brakes went into emergency. The next time I applied my air was going into Sumter, and the brakes worked all right at that stop. After that I closed the storage and had a short time to wait there for No. 46 to Florence, and on leaving Sumter that time the brakes went into emergency again, and Mr. Scott came around with the orders, and I notified Lynchburg. One of the train hands came up and told me to come back in the wrecking car, and 4. We revert now to the main issue, before they were in conversation about the rough hanstated. The plaintiff's cause of action con-dling of the train, and we thought it was caused sists (1) in an injury to his leg which came by a defective triple. This discussion was in Mr. Scott's presence. from a fall off the defendant's freight cars at and I were talking about it, and Mr. Scott came At Sumter Mr. Dabney Manning, and (2) which fall was due to a to the engine, and I also called his attention to negligently defective brake equipment which it there. He said, 'All right, I will try to test supplied the train. The defect in the equip- it,' but he made no attempt to try to find it. ment first alleged was the defendant's neg- north of the station at Manning, and the brakes We went on to Manning and stopped the train lect at Florence to see that the air valves did not go into emergency. We went down there of the equipment were properly cleaned. and were on the track and had only one car there The delict next alleged (for new matter) at the time to back in on these cars to shift them back to make room for other cars on the other was the engineer's neglect, betwixt Florence end, and this is when the trouble was." and Manning, and at the instant of the accident, to see that the brake equipment was in good condition, This last is no allegation of a new defect in the equipment; it is only an allegation that the engineer failed to do his duty on the route, "to see that the brake equipment of his engine was in good condition on the trip." The new matter is not the allegation of a new claim; it is, at most, only this allegation of a new delict by the engineer, but about the same brake equipment which did the damage. The pleading of the new matter was suggested to the plaintiff by the testimony of the engineer on his direct examination. He alone then testified that the brakes went into involuntary emergency both at Lynchburg and at Sumter stations, en route to Manning, and again at Manning, by which last action the plaintiff was thrown from the top of a car. The allegation hardly conformed to the proof which had been made, and we think the plaintiff may have relied without the amendment on the habitual involuntary emergency action of the brakes at Lynchburg and Sumter and Manning to show the engineer's knowledge of the condition of the brakes, and to show a defect in the brakes which was the result of 1. INSURANCE 623(4)-DENIAL OF LIABILnegligence. At all events, the event pleaded ITY-COMMENCEMENT OF ACTION-WAIVER. by the new matter resided in the mind of In action on a policy of fire insurance, where the engineer; and the proof of it was made insured gave due notice and proper proofs of by him on the direct examination of defend-loss, and an attempted adjustment failed, and that an attempted arbitration was had, and beant's counsel. This testimony of the defend- cause of the partiality of the representative of ant's chief witness ought not and could not the insurer and the umpire the plaintiff refused have amounted to a legal surprise. The en- consider any further proposition and gave noto accept the award, and the insurer refused to gineer testified: tice that it would settle only upon an acceptance of the award, the insurer's denial of a partial liability was a waiver of the provision against suit within 60 days of the award.

"I was engineer for the Atlantic Coast Line in March, 1914, and had been for about three years. I was in charge of the locomotive which carried the wreck train to Manning on March 27, 1914, which was in charge of Mr. Scott. I

The order of the circuit court was based

upon an error of law, and ought to be set aside; and the cause ought to be remanded to the circuit court, with direction to the trial judge (Hon. S. W. G. Shipp) to decide the 12 grounds for a new trial made by the defendant and before referred to..

I therefore dissent from the judgment of the court.

(105 S. C. 364)

FASS et al. v. LIVERPOOL, LONDON &

GLOBE FIRE INS. CO. SAME v. NORTH
CAROLINA HOME INS. CO. SAME V.
INSURANCE CO. OF NORTH AMERICA.
(No. 9509.)

(Supreme Court of South Carolina.
1916.)

Sept. 14,

[Ed. Note.-For other cases, see Insurance, Cent. Dig. § 1551; Dec. Dig. 623(4).]

2. INSURANCE 574(3)—FIRE INSURANCE- | dar No. 2 and be referred to the master to ARBITRATION-PARTIALITY-INVALIDITY. take testimony and report it to the court, overruled, and motion that action be dismissed on ground that pleading stated no cause of action overruled, and defendants except and appeal. Affirmed.

The partiality of the appraiser or arbitrator selected by an insurer invalidated the award, and was a defense against it and its acceptance. [Ed. Note. For other cases, see Insurance, Cent. Dig. §§ 1430-1432; Dec. Dig. 574(3).] 3. EQUITY 44 JURISDICTION EQUITY-Fraud.

LAW OR

Fraud is not a matter of exclusive equitable cognizance, ut courts of law have jurisdiction to try issues of fraud, and, where the issue arises in legal actions, such as actions for the recovery of money only, and the remedy is also legal and adequate, the jurisdiction is concurrent, and the practice is to submit the issue of fraud to the jury.

[Ed. Note. For other cases, see Equity, Cent. Dig. 141-145; Dec. Dig. 44; Action, Cent. Dig. § 144.]

4. ARBITRATION AND AWARD

OF ARBITRATORS.

64-DUTIES

An arbitrator is bound to exercise judicial impartiality, uninfluenced in favor of the side appointing him, as he is not an agent, representative, or advocate of the party by whom he

has been selected.

"The above entitled suits were begun on the 5th day of February, 1915, and sought to recover of the three defendants, the Liverpool, London & Globe Fire Insurance Company, the North Carolina Home Insurance Company, and the Insurance Company of North America, the sum of $6,500. The plaintiff Frances Fass was the owner of a store building on Main street in the town of Dillon, which was insured in the three companies as follows: $2.500 in the Liverpool, Loudon & Globe, $2,000 in the North Carolina Home, and 2,000 in the Insurance Company of North America. The plaintiffs E. Randolph Williams and J. B. Gibson, as trustees, were made parties to the action, for the reason that a mortgage debt had been made against the premises and the loss clause of the In an action to recover the amount due on policies was made payable to them. On the 31st a fire policy, where the complaint ignored an day of December, 1914, the plaintiffs' building award as a nullity, and where the defendant's was destroyed by fire. All three of the policies answer set up the award in bar of the action. were in full force and effect at the time, and the plaintiff was not required to reply to such plaintiff claimed reimbursement for her loss from answer, since under Code Civ. Proc. 1912, § 203, due notice of the loss was given, and proper the said companies. The complaint alleges that a reply is unnecessary, except when a counterclaim is set up in the answer, or when it is re-proofs of loss were prepared, and defendants quired by special order of court under the last paragraph of section 203.

[Ed. Note.-For other cases, see Arbitration & Award, Cent.Dig. §§ 321-327; Dec.Dig. 64.] 5. I'LEADING 105-ANSWER-REPLY-STAT

UTE.

[Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 321, 323; Dec. Dig. 165.] 6. TRIAL 11(2)-ACTION ON POLICY-DEFENSE-AWARD-JURISDICTION.

In a suit to recover the amount due on a policy of fire insurance, where the answer pleaded an award in bar, and the reply set up partiality on the part of the insurer's arbitrator and misconduct on the part of an agent of the insurer and the arbitrators, the insurer was not entitled to have the cause transferred for trial of the issue in equity.

[Ed. Note.-For other cases, see Trial, Cent. Dig. § 29; Dec. Dig. 11(2); Actions, Cent. Dig. § 312.]

Fraser, J., dissenting in part.

sent their adjuster to make an adjustment of said loss. That the plaintiff Frances Fass, fully insurance and was entitled to be paid her loss complied with all the terms of said contracts of under said contracts. In due time an adjustment was attempted to be made between the parties themselves; but, they failing to agree, an attempted arbitration was had in pursuance of the arbitration provision contained in the insurance policies. Each party appointed a representative, and the two so appointed chose an umpire and attempted to make an award, but because of the alleged partiality of the representatives of the defendants and of the umpire, plaintiff refused to abide by the finding of the representative of defendants and the umpire; plaintiffs' representative having refused to sign the award. After the attempted arbitration the defendants refused to consider any further propositions, and notified plaintiffs that they would only settle upon an acceptance of the award as Appeal from Common Pleas Circuit Court made, and that no further attempts towards a of Dillon County; Thos. J. Mauldin, Judge. settlement otherwise would be considered. Suit by Frances Fass joining E. Randolph Thereupon these suits were instituted. An an swer was filed to plaintiffs' complaint, setting Williams and another, as trustees of the At-up as a plea in abatement the fact that the lantic Life Insurance Company, as parties suit had been brought within 60 days of the plaintiff, against the Liverpool, London & loss and of the award; that plaintiff had failed Globe Fire Insurance Company, consolidat- judgment dismissing the suit. Upon motion duly to file proper proofs of loss and hence prayed ed with suits by the same plaintiffs against made plaintiffs filed a reply, setting up the rethe North Carolina Home Insurance Compa- fusal to pay the insurance or to negotiate furny and the Insurance Company of North partiality, and misconduct on the part of the ther in connection therewith, and alleged fraud, America. Motion by defendant that the en- umpire and defendants' representative in the tire cause be stricken from calendar 1 and arbitration, and alleged a waiver of the stipulatplaced on calendar No. 2 for determination ed period of 60 days and of the filing of formal by the court without a jury, or, failing that, by reason of the alleged fraud, partiality, etc., proofs of loss, and that the attempted award, for an order transferring the issue raised was a nullity, and prayed for judgment as is by the answer and reply to calendar No. 2, asked in their complaint. The cause came on for and if neither of such motions be granted, a jury at the October, 1915, term of court of trial before his honor Judge T. J. Mauldin and then that the cause be transferred to calen- common pleas for Dillon county. And upon the

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes