The opinion of the Court was delivered by
Mr. Justice Cothran.
Action for $2,752.50 damages, the value of a cargo of potatoes alleged to have been lost by the sinking of a barge at the wharf of the railroad company in the city of Charleston by reason of the negligence of the defendants on June 9, 1920.
It appears that the plaintiff, as the successor in interest of A. E. Young & Co., was extensively engaged in truck-farming on Daniel’s Island, near Charleston, and was accustomed to have the vegetables transported by barge from Daniel’s Island to the wharf of the railroad company in Charleston, and there delivered to it for shipment to Northern markets; the railroad company undertaking to unload the cargoes at the wharf and transfer them to cars, or hold for an accumulated shipment. Upon the occasion in question the plaintiff or its predecessor delivered to King Bros, the cargo of potatoes in barrels, marked as consigned to A. F. Young & Co., New York, for transportation to the wharf. King Bros, towed the barge containing the potatoes to the wharf and tied it up there. It arrived in the afternoon some time between 4 and 6 o’clock, the witnesses disagreeing as to the precise time.
The evidence for the plaintiff tended to show that when the barge arrived at the wharf it was in a leaking condition but not more so than was usual with such vessels; that King Bros, so notified the agent of the railroad company who was authorized to receive the shipment under the usual conditions, to be unloaded and transported; that the agent accepted the shipment as it was and agreed to either unload the barge during the night or put a sufficient force at the pumps to prevent its sinking.
The evidence for the railroad company tended to show that the agent positively refused to accept the shipment or to assume any responsibility for it qn account of the condition of the barge, and that he was so instructed by his superior'officer.
King Bros, left the barge with the cargo tied 'up at the wharf, and during the night it sank, causing a total loss of the potatoes.
The case appears to have been fought out upon an entirely different theory from that alleged in the complaint. ' The action is against King Bros, and the railroad company. King Bros, are charged with a breach of contract to safely transport the cargo to the wharf, in that they employed an unseaworthy vessel for that purpose and were derelict in thei-r duty to promptly unload the cargo upon its arrival at the wharf or to sufficiently protect it from sinking by pumping during the night. The railroad company is charged, with a breach of its- contract or engagement with King Bros, to keep the -barge pumped out until such time as it could be unloaded. It is nowhere alleged in the complaint that the cargo was delivered to the railroad company and accepted by it to be unloaded and shipped to the destination indicated-by the marking upon the barrels.
On the other hand, the evidence for the plaintiff tended to show that the railroad company accepted the cargo in its •then condition to be unloaded by it and shipped' to destination; the engagement to unload it,during the night or to properly protect the barge from sinking being apparently 'evidentiary only of the delivery and acceptance. It was. upon this theory that the contest was waged, and, as there appears no objection thereto, we will so consider it.
At the close of the evidence for the plaintiff, the railroad company moved for a non-suit upon the ground that the engagement of the agent to receive the cargo and care for it was not sufficient to connect the railroad company with the shipment to New York as an intermediate carrier. The motion was refused.
At 'the close of all the evidence the railroad company moved for a directed verdict upon the following grounds:
“(1) That there was a total failure of evidence that the railroad company had accepted this shipment for transporta
tion or had issued any receipt therefore, or done any act showing an acceptance of the same for such transportation, or in any way made itself liable as common carrier fdr loss of the goods.
“(2) That the whole testimony showed, and the only reasonable inference therefrom was that the loss sustained .by the plaintiff was due to the'leaky and unseaworthy condition of the boat upon which the goods were loaded for which condition the railroad company was in no way responsible.
“(3) That there was no evidence from which a reasonable inference could be drawn that the railroad company had received the shipment as warehouseman, and had undertaken any duty as warehousemen with reference to the same.”
This motion was also refused.
The jury rendered a verdict in favor of King Bros, and against the railroad company for the full amount of damages claimed. The railroad company has appealed.
Treating the case as one against the railroad company for loss of goods after delivery and acceptance of them for transportation, it is clear from the foregoing statement of the evidence that the issues of fact were properly submitted to the jury, and that both motions were properly refused.
We approve the charge of the Circuit Judge, a quotation from one of the concurring opinions in the case of
Behrmann v. Railroad Co.,
118 S. C., 48; 109 S. E., 397, as follows :
“In order to charge the carrier with the practically absolute liability of a common carrier as compared with the limited liability of a warehouseman, the burden is upon the owner of the goods to establish: (1) That there has been a complete delivery of the goods to the carrier, actual or constructive; (2) that the delivery has been made for shipment, with full shipping directions; (3) that the-goods have been accepted by the carrier for immediate shipment or at such time as the convenience of the carrier may suggest;
(4) that the goods have gone into exclusive possession of the carrier, and that nothing further is to be done with or to them bjr the owner.”
As to each of these requisites there was evidence sufficient to carry the issue to the jury.
We may remark, particularly with reference to the ground of the motion for nonsuit, that it is inconsequential whether the railroad company, on the acceptance of the cargo for transportation, did so in the capacity of an intermediate carrier or of a warehouseman, if as a matter of fact it was derelict in its duty to properly care for the cargo, or violated its express engagement to protect it. If the cargo was accepted in its capacity as a carrier, intermediate or otherwise, it became liable for loss, while in its possession as such, regardless of the question of negligence; if as a warehouseman, it became liable for loss consequent upon its negligence or breach of the express engagement, of which there was sufficient evidence, to' carry the case to the jury.
In no event could the second exception, relating to the motion for a directed verdict, be entertained, for the reason that it violates rule 5, subd. 6 (90 S.
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The opinion of the Court was delivered by
Mr. Justice Cothran.
Action for $2,752.50 damages, the value of a cargo of potatoes alleged to have been lost by the sinking of a barge at the wharf of the railroad company in the city of Charleston by reason of the negligence of the defendants on June 9, 1920.
It appears that the plaintiff, as the successor in interest of A. E. Young & Co., was extensively engaged in truck-farming on Daniel’s Island, near Charleston, and was accustomed to have the vegetables transported by barge from Daniel’s Island to the wharf of the railroad company in Charleston, and there delivered to it for shipment to Northern markets; the railroad company undertaking to unload the cargoes at the wharf and transfer them to cars, or hold for an accumulated shipment. Upon the occasion in question the plaintiff or its predecessor delivered to King Bros, the cargo of potatoes in barrels, marked as consigned to A. F. Young & Co., New York, for transportation to the wharf. King Bros, towed the barge containing the potatoes to the wharf and tied it up there. It arrived in the afternoon some time between 4 and 6 o’clock, the witnesses disagreeing as to the precise time.
The evidence for the plaintiff tended to show that when the barge arrived at the wharf it was in a leaking condition but not more so than was usual with such vessels; that King Bros, so notified the agent of the railroad company who was authorized to receive the shipment under the usual conditions, to be unloaded and transported; that the agent accepted the shipment as it was and agreed to either unload the barge during the night or put a sufficient force at the pumps to prevent its sinking.
The evidence for the railroad company tended to show that the agent positively refused to accept the shipment or to assume any responsibility for it qn account of the condition of the barge, and that he was so instructed by his superior'officer.
King Bros, left the barge with the cargo tied 'up at the wharf, and during the night it sank, causing a total loss of the potatoes.
The case appears to have been fought out upon an entirely different theory from that alleged in the complaint. ' The action is against King Bros, and the railroad company. King Bros, are charged with a breach of contract to safely transport the cargo to the wharf, in that they employed an unseaworthy vessel for that purpose and were derelict in thei-r duty to promptly unload the cargo upon its arrival at the wharf or to sufficiently protect it from sinking by pumping during the night. The railroad company is charged, with a breach of its- contract or engagement with King Bros, to keep the -barge pumped out until such time as it could be unloaded. It is nowhere alleged in the complaint that the cargo was delivered to the railroad company and accepted by it to be unloaded and shipped to the destination indicated-by the marking upon the barrels.
On the other hand, the evidence for the plaintiff tended to show that the railroad company accepted the cargo in its •then condition to be unloaded by it and shipped' to destination; the engagement to unload it,during the night or to properly protect the barge from sinking being apparently 'evidentiary only of the delivery and acceptance. It was. upon this theory that the contest was waged, and, as there appears no objection thereto, we will so consider it.
At the close of the evidence for the plaintiff, the railroad company moved for a non-suit upon the ground that the engagement of the agent to receive the cargo and care for it was not sufficient to connect the railroad company with the shipment to New York as an intermediate carrier. The motion was refused.
At 'the close of all the evidence the railroad company moved for a directed verdict upon the following grounds:
“(1) That there was a total failure of evidence that the railroad company had accepted this shipment for transporta
tion or had issued any receipt therefore, or done any act showing an acceptance of the same for such transportation, or in any way made itself liable as common carrier fdr loss of the goods.
“(2) That the whole testimony showed, and the only reasonable inference therefrom was that the loss sustained .by the plaintiff was due to the'leaky and unseaworthy condition of the boat upon which the goods were loaded for which condition the railroad company was in no way responsible.
“(3) That there was no evidence from which a reasonable inference could be drawn that the railroad company had received the shipment as warehouseman, and had undertaken any duty as warehousemen with reference to the same.”
This motion was also refused.
The jury rendered a verdict in favor of King Bros, and against the railroad company for the full amount of damages claimed. The railroad company has appealed.
Treating the case as one against the railroad company for loss of goods after delivery and acceptance of them for transportation, it is clear from the foregoing statement of the evidence that the issues of fact were properly submitted to the jury, and that both motions were properly refused.
We approve the charge of the Circuit Judge, a quotation from one of the concurring opinions in the case of
Behrmann v. Railroad Co.,
118 S. C., 48; 109 S. E., 397, as follows :
“In order to charge the carrier with the practically absolute liability of a common carrier as compared with the limited liability of a warehouseman, the burden is upon the owner of the goods to establish: (1) That there has been a complete delivery of the goods to the carrier, actual or constructive; (2) that the delivery has been made for shipment, with full shipping directions; (3) that the-goods have been accepted by the carrier for immediate shipment or at such time as the convenience of the carrier may suggest;
(4) that the goods have gone into exclusive possession of the carrier, and that nothing further is to be done with or to them bjr the owner.”
As to each of these requisites there was evidence sufficient to carry the issue to the jury.
We may remark, particularly with reference to the ground of the motion for nonsuit, that it is inconsequential whether the railroad company, on the acceptance of the cargo for transportation, did so in the capacity of an intermediate carrier or of a warehouseman, if as a matter of fact it was derelict in its duty to properly care for the cargo, or violated its express engagement to protect it. If the cargo was accepted in its capacity as a carrier, intermediate or otherwise, it became liable for loss, while in its possession as such, regardless of the question of negligence; if as a warehouseman, it became liable for loss consequent upon its negligence or breach of the express engagement, of which there was sufficient evidence, to' carry the case to the jury.
In no event could the second exception, relating to the motion for a directed verdict, be entertained, for the reason that it violates rule 5, subd. 6 (90 S. E., vii), in referring to the grounds previously set forth in the “case.”'
This disposes of exceptions 1 and 2.
Exception 3 assigns error in the exclusion of evidence to the effect that the railroad company did not and could not have accepted the shipment because of-labor troubles or strikes on the wharf when the shipment was offered. This exception cannot be sustained for two reásons: First, the specification of error is not that such evidence tended to show that the railroad company did not accept the shipment, a contention which it would perhaps faintly have supported, but it is that by the exclusion the defendant was denied a defense set up in its answer to which no detnurrer was interposed nor motion to strike out. The
fact that the defendant’s facilities may have been thus impeded was no defense to its liability as a common carrier or a warehouseman, if it had accepted the shipment and engaged to properly care for it.
Porcher v. Railroad Co.,
14 Rich., 181. Second, the exclusion was harmless in view of the subsequent admission of abundant testimony to the same effect.
Exception 4 assigns error in the exclusion of the testimony of defendant’s agent that “his obligation in this [matter] was only as an intermediate carrier.” The defendant’s contention was that it had not accepted the shipment in any capacity. Evidence that it had accepted it as an intermediate carrier would have not only been inconsistent with its defense, but harmless to it, the exclusion of which it is in no position to object to.
Exception 5 assigns error in the exclusion of evidence to show that a certain transportation
company
with which King Bros, had a working agreement was a participating carrier. Whether it was or was not had no bearing upon the issue whether or not the defendant had accepted the shipment and was responsible for it.
Exception '6 assigns error 'in declaring the law applicable
to common
carriers and warehousemen, the specification being that the defendant was charged as a common carrier, and the law applicable to warehouse-men, while correctly stated, was irrelevant. The complaint, as had been shown, did not charge the defendant as a common carrier, and, if it had, the defendant was not prejudiced by the reference to the less drastic liability of a warehouseman.
Exception 7 assigns error in charging that the transportation company and King Bros were each private carriers. In addition to the fact abundantly appearing that the Circuit Judge properly characterized them, whether they were private or common carriers had no bearing upon the ques
tion at issue whether or not the defendant had accepted the shipment and engaged to take care of it.
Exception 8 assigns error in refusing the defendant’s request to charge that, if fhe loss was due to the-leaky condition of the barge, the defendant could not be held liable. The condition of the barge was imma-' terial, if as a matter of. fact the defendant knew of its condition, and notwithstanding this knowledge accepted the shipment and engaged to protect it, which was an issue- for the jury.
Exception 9 is disposed of by the disposition of the third exception.
Exceptions 10, 11, and 12 are disposed of by the disposition of the seventh exception.
Exception 13 is disposed of by the disposition of the third exception-.
Exception 14 is concluded by the decisions of this Court in the cases of
Copeland v. Railroad Co.,
76 S. C., 476; 57 S. E., 535, and
Behrmann v. Railroad Co.,
118 S. C., 48; 109 S. E., 397.
Exception 15 assigns error in the charge that no bill of lading was necessary to bind the defendant; that acceptance o-f the shipment might be implied from other facts and the conduct of the parties. The correctness of the charge is not open to question.
“A
bill of lading or other receipt is not ordinarily essential to a complete delivery, but, as such an instrument is merely evidence that the carrier has received possession of the property this fact may be shown by any other legitimate evidence.” 4 R. C. L., 695.
“The liability of the carrier * * * begins with the actual delivery, and not merely with the formal execution of a receipt or bill of lading.” 10 C. J., 226.
The reporter will reproduce the fifth request of King Bros., with thé remarks of the Circuit Judge.
Exception 16 assigns error in the charge relating to the authority of an agent in connection with the.acceptance of goods offered for transportation. The charge correctly states the law.
Eet the exceptions be reported.
The
judgment of
this Court is that the judgment of the Circuit Court be affirmed.