
    6769
    WILSON & JAMES v. ATLANTIC COAST LINE R. R. CO.
    1. Magistrate. — FnsrorfTGS by Circuit Court on appeal from magistrate are conclusive on this Court when there is any evidence to support them.
    2. Freight. — Carrier is liable for loss of freight and penalty under 24 Stat., 81, whether goods were lost by conversion or otherwise. »
    3. Magistrate. — Circuit Judge may order case returned to magistrate to take further proceedings to render judgment effective in law case, after affirming magistrate judgment.
    
      Before Memminger, J., Darlington,
    April, 1907.
    Affirmed.
    Action by Wilson & Jamies against Atlantic Coast Line Railroad Company. 'From Circuit judgment affirming judgment of Magistrate H. E. P. Sanders, defendant appeals.
    
      Messrs. P. A. Willcox and W. P. Dargan, for appellants.
    
      Mr. Dargan cites: Appellant cam, not abandon goods and then sue for loss and penalty: 6 Cyc., 539 ; 7 Rich., 590; 5 Rich., 463.
    
      Mr. George Pi. Edwards, contra,
    cites : Pindings by magistrate can not be reviewed here: 73 S. C., 71, 389, 543; 77 S. C., 414; 78 S. C., 81. His ñndings are supported by the evidence: 73 S. C., 391; 11 Eney., 8-84. •The act 34 Stat., 81, is constitutional: 73 S. C., 71, 140', 543; 78- S. C., 36, 81.
    February 26, 1908.
   The opinion of the Court was delivered by

Mr. Justice Gary.

This action was commenced in a , magistrate’s -court. The complaint alleges that on tire 3d of March, 1904, certain goods of the value of $31.00’ were delivered to the defendant -ait Norfolk, Va., to be transported to' the plaintiff at Darlington, S. C. That the defendant failed and refused to- deliver the said goods, although repeatedly requested to do so, and that they were, in consequence-, wholly lost to the plaintiffs, foi their damage of $31.00-. The plaintiffs also -claimed the -statutory penalty of $50.00 for the defendant’s refusal to' pay the said -claim within ninety days after the filing of the same.

The magistrate rendered judgment in favor of the plaintiffs for the -amounts claimed.

The defendant appealed-, and-his Honor, -the Circuit Judge, in -affirming the judgment used this language:

“It i-s perfectly manifest from- the testimony that the go-ods -were lost to plaintiff's in the sense of the statute. The officials of the railroad- -would give them no- definite or satisfactory information as to whether the goods- had been received or not, and such failure to respond to proper inquiries-, to the extent even, as- appears from the testimiony, of insolent conduct to the plaintiffs’ representative when sent to -seek the goods-, must be held equivalent to a point-blank refusal to deliver. It seem© abundantly established, from the testimony, that -plaintiffs -sent and sought delivery of their goods and tendered the freight charges, and the goods could not be obtained. Every 'effort seem© to have been used to obtain them, which efforts were miet only by evasive replies, and finally, positive offense and refusal'.”

The defendant has again appealed.

There was testimony tending to sustain die findings of facts by hi-s Honor, the Circuit Judge, -and, as this is a law case, such findings are conclusive upon this Court.

'The appellant next contends that there was- no testimony tending to show that -the porperty was either lost or datn'Uagedj and therefore, that the defendant was not subject to the statutory penalty of $50.00' provided by the Act of 1903, 24 Stat, 81. The object of the statute was to confer upon the consignee a special remedy when there was a failure on the part of the railroad company to deliver the freight. It is 'immaterial in what manner the company caused the loss to the plaintiff, whether by conversion or otherwise.

The next error is assigned by the following exception: “Because his Honor, having affirmed the judgment of the magistrate -and dismissed the appeal, erred in ordering the record to be returned to Magistrate Sanders for such further proceedings thereon- as -may be necessary to render the judgment effective, and in- ordering that a certified copy of his order accompany the record. It being respectfully submitted that the judgment was then already effective and a judgment of the Circ-hit Court, and there was nothing the magistrate could do to r-ender said judgment effective.”

The power to insert the foregoing provision in the order rested within the discretion of the 'Circuit Judge.

Furthermore, the appellant has failed! to .satisfy this Court that it was prejudicial to its rights.

The exceptions raising the question whether the act of 1903, 24 Stat., 81, is constitutional were abandoned, as the said act has been declared 'constitutional by recent decisions of this Court.

It is the judgment of this Court, that the judgment of the Circuit Court be affirmed.  