In Railway Co. v. Blish Milling Co., supra, the Court said, with respect to such a stipulation:

"The action is in trover, but, as the State Court said, 'if we look beyond its technical denomination, the scope and effect of the action is nothing more than that of an action for damages against the delivering carrier.' 15 Ga. App. 147 (82 S. E. 787). It is urged, however, that the carrier in making the misdelivery converted the flour and thus abandoned the contract. But the parties could not waive the terms of the contract under which the shipment was made pursuant to the federal act; nor could the carrier by its conduct give the shipper the right to ignore these terms which were applicable to that conduct and hold the carrier to a different responsibility from that fixed by the agreement made under the published tariffs and regulations. A different view would antagonize the plain policy of the act and open the door to the very abuses at which the act was aimed. Chi. & Alt. R. R. v. Kirby, 225 U. S. 153, 166 (32 Sup. Ct. 648, 56 L. Ed. 1033, Ann. Cas. 1914a, 501); Kansas Southern Ry. v. Carl (227 U. S. 639, 33 Sup. Ct. 391, 57 L. Ed. 683); A., T & S. F. Ry. v. Robinson, 233 U. S. 173, 181 (34 Sup. Ct. 556, 58 L. Ed. 901); Southern Ry. v. Prescott, supra. We are not concerned in the present case with any questions save as to the applicability of the provision and its validity, and as we find it to be both applicable and valid, effect must be given to it."

In Kansas Southern Ry. v. Carl, 227 U. S. 639, 654, 33 Sup. Ct. 391, 396 (57 L. Ed. 683), it was held that: "To the extent that such limitations of liability are not forbidden by law, they become, when filed, a part of the rate."

It is settled by numerous decisions that an interstate carrier cannot alter or waive the rate filed with the commission. Having held that the stipulation was valid and applicable, the Court erred in admitting evidence to show waiver

of the provisions, and in instructing the jury that the carrier could waive them.

Judgment reversed.

On petition for rehearing

PER CURIAM. The only point decided by this Court was that, having held the stipulation valid and applicable, the Circuit Court erred in holding that it could be waived. Neither the validity nor applicability of the stipulation was before this Court, and, of course, the decision does not adjudicate either point.

9652

NATIONAL BANK OF SAVANNAH v. SOUTHERN RY.-CAROLINA DIVISION.

(91 S. E. 972.)

1. ACTION-MISDESCRIPTION OF BILL OF LADING-NATURE OF ACTION.-An action against a carrier for negligently issuing a bill of lading misdescribing the property is based upon tort, and not contract.

2. TORTS JOINT LIABILITY-CARRIER AND SHIPPER.-A railroad company and shipper co-operating in issuing bills of lading falsely describing property shipped are joint tort-feasors.

3. JUDGMENT - PAYMENT - EFFECT ON ACTION AGAINST JOINT TORTFEASORS. Although judgment may be recovered against either or both joint tort-feasors, collecting the entire judgment against one tort-feasor bars further proceedings against the other.

Before HON. W. A. HOLMAN, special Judge, Camden, July, 1914. Affirmed.

Action by the National Bank of Savannah against the Southern Railway-Carolina Division. Judgment for defendant, and plaintiff appeals.

Messrs. Garrard & Gazan and McCullough, Martin & Blythe, for appellant, cite: As to plea in bar: Action on contract rather than tort: 85 S. C. 537; 89 S. C. 415; 13 Cyc. 85, 86; 13 S. C. 88; 3 McC. 499, 500; 10 Rich. 382; 202

Fed. 90. Only one satisfaction allowed: 23 Cyc. 1214; 9 Cyc. 654; 1 N. & McC. 318; 2 Bailey 404; 2 McM. 184; 67 S. C. 499; 58 L. R. A. 301-308; 38 Me. 566; 6 R. I. 45; 50 Wis. 138; 36 Am. Rep. 830; 6 N. W. 518; 64 Mo. App. 368; 60 Wis. 248; 18 N. W. 927; 41 Vt. 110; 11 Paige 20; 64 L. R. A. 579; 3 Wall. 17; 92 Am. St. Rep. 876. Stipulation as to time for presentment of claim: 1 Hutch. Carriers, secs. 464, 445; 183 U. S. 621; 95 U. S. 673; 167 U. S. 149, 159; 180 U. S. 49; 63 L. R. A. 827; 35 Minn. 344; 127 Mo. App. 80; 31 L. R. A. (N. S.) 1179; 113 N. Y. 676; 4 S. C. 135; 33 Ind. App. 564; 71 N. E. 685; 17 L. R. A. (N. S.) 628; 114 App. Div. (N. Y.) 747; 80 Mo. App. 164; 85 S. W. 118; 14 Am. St. Rep. 387.

Messrs. Frank G. Tompkins and B. L. Abney, for respondent, cite: Former action: 202 Fed. 90; 209 Fed. 835. As to joint tort feasors: 67 S. C. 514; 29 Cyc. 487; 23 Cyc. 1214; 136 Ky. 446; 124 S. W. 398; 1 Cooley Torts, secs. 105 and 159, pp. 232, 233; 2 McMul. 184; 1 N. & McC. 318; 2 Bailey 411; 57 Am. Rep. 55; 82 S. C. 522, 524; 7 Fed. 401; 89 S. C. 408; 84 S. C. 190; 22 Cyc. 1178.

Messrs. McCullough, Martin & Blythe, for respondent, in reply, cite: 58 L. R. A. 5.

March 22, 1917.

The opinion of the Court was delivered by MR. JUSTICE WATTS.

This is an action of plaintiff against the defendant for $13,094.04, and interest at 7 per cent. per annum from January 6, 1911. The defendant answered denying the material allegations of the complaint. At that time there was pending in the United States Court for the District of South Carolina an action by the same plaintiff against the

Kershaw Oil Mill and Lancaster Oil Company, which action was based on the same facts set out in the complaint herein. 202 Fed. 90, 209 Fed. 835, 232 U. S. 725. This case in the United States Court after protracted litigation resulted in the plaintiff's finally obtaining judgment on January 29, 1913, for the sum of $11,416.58, which was paid on April 3, 1914, at that time amounting to $12,353.37.

The defendant after this judgment was paid filed a supplemental answer to the complaint in this case and alleged and sets up as a bar to this action the proceedings in the Federal Court, alleges payment of the judgment, and pleads the recovery and satisfaction of this as a bar to this action, and sets up as another defense that the claim is barred because of the fact that it was not filed within four months prescribed by the bills of lading. The defendant demurred to these two defenses, and the cause was heard by Special Judge W. A. Holman, at the Summer term of Court, 1914, for Kershaw county, who sustained the demurrer relative to the time of filing the claim and overruled the demurrer as to the plea of the defendant that the payment of the judgment obtained in the Federal Court was a bar to the action.

From this order both plaintiff and defendant appeal, and the questions raised by the exceptions present two questions for the determination of this Court. The first is:

"Under the facts of this case is the judgment and satisfaction thereof in the case of plaintiff against the Kershaw Oil Mills in the Federal Court a complete bar to this cause of action?"

We will consider this question. No one is entitled but for one full compensation for a violation of his rights.

The plaintiff insists that his action against the oil mill was an action in tort, and against the defendant is an action in contract. We think under the facts in the case that this is a

fine-drawn distinction. The erroneous statement

1 placed in the bills of lading by the oil mill companies and the defendant railroad constituted a tort.

by reason of this erroneous statement alone that the bank was induced to pay out money for the bills of lading and lost its money. The preliminary question to be determined is whether this action is for breach of contract or a tort. The action is for an alleged violation of duty on the part of the defendant in negligently issuing a bill of lading purporting to be cotton when it was "linters." The alleged violation of duty on the part of the defendant was a tort. The action is for a tort. The plaintiff was injured by the defendant's negligence in issuing a bill of lading containing erroneous statement by reason of which plaintiff suffered damage. Chief Justice Gary, in Pickens v. Railroad Co., 54 S. C. 502, 32 S. E. 567, laid down the law that:

"An action by a passenger against a railroad company for failure to carry her to her destination by reason of its negligence is an action in tort, and not one in contract."

The complaints by the plaintiff in the two cases are identical. It is conclusively shown that both actions grew out of the same state of facts under the allegations of the complaint. The Kershaw Oil Mills Company and the railroad 2 company acted together and caused to be issued the alleged fraudulent bills of lading in question. The allegations of the complaint make the oil mills and the railroad joint tort-feasors. It alleges and shows that the railroad company at the request of the oil mills assisted the oil mills in carrying out its purpose as to the issuance of erroneous and misleading bills of lading. The wrong act of one was the wrong act of both; they acted together in concert, and by mutual assistance aided each other in issuing the erroneous bills of lading. The oil mill requested it. The railroad acceded to this request, and issued the bills of lading as asked for. The wrong done to the plaintiff was the joint act of the defendant and the oil mill. Both were joint tortfeasors.

The plaintiff had the right to sue them separately and to recover judgment against each. If the plaintiff had prose