The opinion of the Court was delivered by
Mr. Justice; Watts.
This was an action brought to recover three thousand and five dollars and thirty-two cents insurance for 43 bales of cotton burned on the depot platform of the plaintiff at Kollock, S. C. The plaintiff alleges that the defendant, by contract in writing on August 4th, 1909, agreed to insure the plaintiff for a term of one year from August 20, 1909, against all direct loss and damage by fire, as stated in paragraph one of its “rider,” in the words: “On all liability of assured as a common carrier of cotton in
bales, in transit, in cars, or in or on depots, or platforms, on line of assured’s road.” The policy also' has this: “This insurance covers all legal liability of the assured as a common carrier, not exceeding the actual cash value (market) of the cotton immediately preceding the fire, which cash value shall in ím case exceed what it would then and there cost to replace same with cotton of. like kind and quality, and attaches from the issue of assured’s bill of lading, and terminates upon delivery to consignee or succeeding carrier.” After issue was joined the case came on to be heard before Hon. Joseph A. McCullough, as special Judge, and a jury, after evidence was taken, and case argued, the Court directed a verdict for the plaintiff for the full amount claimed, $3,517.21, and after entry of judgment defendant appeals, and by seven exceptions questions the correctness of the Judge’s rulings, and alleged error, these exceptions should be set out in the report of the case.
1
The first exception alleges error in admitting in the first instance over objection the evidence of E. H. Duvall, and other witnesses, as to an agreement between Duvall, representing Sprunt & Son, and the plaintiff, railroad company, in reference to the delivery of cotton to railroad, issuance of bills of lading, etc., and later, in refusing the motion to strike out the same, as the alleged agreement was between other parties than the defendant, and without its knowledge or assent. This exception is overruled for the reason it was competent to show by such testimony that the cotton destroyed, or injured, had been tendered and accepted by the railroad company under such agreement or circumstances as to render the railroad company liable as a common carrier. The testimony was not offered to modify, vary, explain, or enlarge the contract made by insurance policy between the plaintiff and defendant, but for the purpose indicated, and is competent under the case of
R. E. Allen, Bro. & Co.
v.
Burnett,
and authorities therein cited, 92 S. C., pages 99 and 100, 75 S. E. 368.
2
The second exception alleges error on the part of his Honor in holding that “the contract ivas intended to insure the plaintiff against any liability as a common carried for cotton in bales, in transit cars, or in or on depots, or platforms, on lines of assured’s road. That the stipulation to the effect that-the liability of the railroad company attaches from the issue of assured’s bill of lading would not, under the agreed statement of facts in this case, and the undisputed facts proven, prevent a recovery. That the cotton here was actually delivered tO' the railroad company as common carrier, was accepted by it as such. Its liability in case of loss attached. The stipulation with reference to the bill of lading only goes to the question of delivery and acceptance, and the delivery and acceptance can be proven and established otherwise than by the issuance and acceptance of the bill of lading.” We think the Court, correctly held that the bill of lading covered the cotton, and it was delivered and accepted by the railroad for shipment. From the admitted facts in the case the Court finds “that the cotton, which was burned, was accepted by the railroad company in good faith, and that it was liable as common carrier for the loss. That before the bill of lading was issued, and after forty-three bales had been delivered to the defendant, railroad, and accepted by them, the fire was discovered, and effort made to save the cotton, and it was taken from the depot and scattered about, and some time during the progress of the fire the bill of lading was actually issued.” There was nothing in this contrary to good business principles, the railroad in the course of business had a perfect right, in the orderly dispatch of its business, to arrange with a party, who was engaged in the business of purchasing and shipping out cotton, to allow it to be put in its shipping yard, depot, or platform, bale by bale, one or more at a time, for the purpose of having a sufficient quantity to ship out on a car or flat, and not issue bills of lading for each lot as placed, but wait until a sufficient number were received to warrant
a shipment, and issue bills of lading for the whole. The evidence shows this was done, and was the arrangement between the railroad and Duvall, and a receipt by them under these circumstances and conditions made them receivers as common carriers, and liable as such, and the evidence show's that the cotton was received, not for storage, but for actual shipment by the railroad, and under such conditions that the liability attached as against them as common carriers even though no bills of lading had been issued by them. The Judge committed no error in his construction of the two paragraphs of the “rider” in holding that the first one covers liability of the assured as common carrier on the cotton situate as this was and received by the common carrier under the agreement and the circumstances the cotton was received, and the second covers the legal liability of the assured as common carrier of the cotton so situated, and in holding under the terms of the policy “that this liability attaches from the issuance of assured’s bill of lading and terminates upon delivery to the consignee or succeeding carrier.” If there is any ambiguity the phrases must be consumed more strongly against the insurance company and in favor of the insured. It is said in
Klein
v.
Home Insurance Company,
A. and E. Ency. Law, vol. 16, 863: “If the terms of a policy are susceptible of tw'o interpretations, equally reasonable, it is the general rule that the construction w'hich is more favorable to the insured must be adopted.” “In determining the meaning of the insurance contract the surrounding circumstances must be considered and the interpretation, if capable of tw'o, which will protect the insured should be adopted.”
Quillin
v.
Ohio Ins. Co.,
40 Penn. 623. The property in this case was tendered and accepted for shipment prior ho the signing of the bill of lading, and the liability attached to the railroad, as common carrier, from that time, to wit: from the time it was received and accepted by them for shipment regardless of the fact that the bills of lading were not issued until later.
Copeland
v.
Southern Rwy. Co.,
76 S. C. 476, 57 S. E. 535;
Mobile R. Co.
v.
Jurey,
111 U. S. 584.
3
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The opinion of the Court was delivered by
Mr. Justice; Watts.
This was an action brought to recover three thousand and five dollars and thirty-two cents insurance for 43 bales of cotton burned on the depot platform of the plaintiff at Kollock, S. C. The plaintiff alleges that the defendant, by contract in writing on August 4th, 1909, agreed to insure the plaintiff for a term of one year from August 20, 1909, against all direct loss and damage by fire, as stated in paragraph one of its “rider,” in the words: “On all liability of assured as a common carrier of cotton in
bales, in transit, in cars, or in or on depots, or platforms, on line of assured’s road.” The policy also' has this: “This insurance covers all legal liability of the assured as a common carrier, not exceeding the actual cash value (market) of the cotton immediately preceding the fire, which cash value shall in ím case exceed what it would then and there cost to replace same with cotton of. like kind and quality, and attaches from the issue of assured’s bill of lading, and terminates upon delivery to consignee or succeeding carrier.” After issue was joined the case came on to be heard before Hon. Joseph A. McCullough, as special Judge, and a jury, after evidence was taken, and case argued, the Court directed a verdict for the plaintiff for the full amount claimed, $3,517.21, and after entry of judgment defendant appeals, and by seven exceptions questions the correctness of the Judge’s rulings, and alleged error, these exceptions should be set out in the report of the case.
1
The first exception alleges error in admitting in the first instance over objection the evidence of E. H. Duvall, and other witnesses, as to an agreement between Duvall, representing Sprunt & Son, and the plaintiff, railroad company, in reference to the delivery of cotton to railroad, issuance of bills of lading, etc., and later, in refusing the motion to strike out the same, as the alleged agreement was between other parties than the defendant, and without its knowledge or assent. This exception is overruled for the reason it was competent to show by such testimony that the cotton destroyed, or injured, had been tendered and accepted by the railroad company under such agreement or circumstances as to render the railroad company liable as a common carrier. The testimony was not offered to modify, vary, explain, or enlarge the contract made by insurance policy between the plaintiff and defendant, but for the purpose indicated, and is competent under the case of
R. E. Allen, Bro. & Co.
v.
Burnett,
and authorities therein cited, 92 S. C., pages 99 and 100, 75 S. E. 368.
2
The second exception alleges error on the part of his Honor in holding that “the contract ivas intended to insure the plaintiff against any liability as a common carried for cotton in bales, in transit cars, or in or on depots, or platforms, on lines of assured’s road. That the stipulation to the effect that-the liability of the railroad company attaches from the issue of assured’s bill of lading would not, under the agreed statement of facts in this case, and the undisputed facts proven, prevent a recovery. That the cotton here was actually delivered tO' the railroad company as common carrier, was accepted by it as such. Its liability in case of loss attached. The stipulation with reference to the bill of lading only goes to the question of delivery and acceptance, and the delivery and acceptance can be proven and established otherwise than by the issuance and acceptance of the bill of lading.” We think the Court, correctly held that the bill of lading covered the cotton, and it was delivered and accepted by the railroad for shipment. From the admitted facts in the case the Court finds “that the cotton, which was burned, was accepted by the railroad company in good faith, and that it was liable as common carrier for the loss. That before the bill of lading was issued, and after forty-three bales had been delivered to the defendant, railroad, and accepted by them, the fire was discovered, and effort made to save the cotton, and it was taken from the depot and scattered about, and some time during the progress of the fire the bill of lading was actually issued.” There was nothing in this contrary to good business principles, the railroad in the course of business had a perfect right, in the orderly dispatch of its business, to arrange with a party, who was engaged in the business of purchasing and shipping out cotton, to allow it to be put in its shipping yard, depot, or platform, bale by bale, one or more at a time, for the purpose of having a sufficient quantity to ship out on a car or flat, and not issue bills of lading for each lot as placed, but wait until a sufficient number were received to warrant
a shipment, and issue bills of lading for the whole. The evidence shows this was done, and was the arrangement between the railroad and Duvall, and a receipt by them under these circumstances and conditions made them receivers as common carriers, and liable as such, and the evidence show's that the cotton was received, not for storage, but for actual shipment by the railroad, and under such conditions that the liability attached as against them as common carriers even though no bills of lading had been issued by them. The Judge committed no error in his construction of the two paragraphs of the “rider” in holding that the first one covers liability of the assured as common carrier on the cotton situate as this was and received by the common carrier under the agreement and the circumstances the cotton was received, and the second covers the legal liability of the assured as common carrier of the cotton so situated, and in holding under the terms of the policy “that this liability attaches from the issuance of assured’s bill of lading and terminates upon delivery to the consignee or succeeding carrier.” If there is any ambiguity the phrases must be consumed more strongly against the insurance company and in favor of the insured. It is said in
Klein
v.
Home Insurance Company,
A. and E. Ency. Law, vol. 16, 863: “If the terms of a policy are susceptible of tw'o interpretations, equally reasonable, it is the general rule that the construction w'hich is more favorable to the insured must be adopted.” “In determining the meaning of the insurance contract the surrounding circumstances must be considered and the interpretation, if capable of tw'o, which will protect the insured should be adopted.”
Quillin
v.
Ohio Ins. Co.,
40 Penn. 623. The property in this case was tendered and accepted for shipment prior ho the signing of the bill of lading, and the liability attached to the railroad, as common carrier, from that time, to wit: from the time it was received and accepted by them for shipment regardless of the fact that the bills of lading were not issued until later.
Copeland
v.
Southern Rwy. Co.,
76 S. C. 476, 57 S. E. 535;
Mobile R. Co.
v.
Jurey,
111 U. S. 584.
3
The third and fourth exceptions allege error on the part of his Honor in considering testimony and recognizing the agreement between the shipper and the railroad, and in holding that defendant was liable when the bill of lading was issued when cotton was partially consumed, and scattered over the grounds, and not on platform, etc., as required by the terms and conditions of the policy. His Honor was correct in admitting evidence to show what the agreement was between Duvall and the' railroad, for the reasons stated in considering the first exception, herein, and that the evidence proves an agreemnt that the railroad company was receiving and accepting the cotton, not for storage, but for actual shipment, and under this state of facts becomes liable as common carrier. There is nothing in the policy that restricts the railroad from receiving and accepting cotton for shipment, even on the ground if at or near its depot, platform, and shipping point. That would be a narrow construction to place on the agreement between the parties as to terms and place of insurance to hold that in order to load cotton received and accepted by a common carrier for shipment, that you should first put it on the platform, or in the depot, when it might be more convenient and less expensive to load from the ground near or at the platform, or depot. If cotton got on fire the railroad company had the right, in order to save it, or minimize the loss, to throw it on the ground, and it would be still covered by insurance. The evidence showed that the issuance of the bill of lading was carrying out the contract previously made between the shipper and the railroad, and his Elonor committed no error in so holding and recognizing this agreement between the shipper
and
the railroad. These exceptions are overruled.
4
The fifth, sixth and seventh exceptions are overruled ’ for the reasons given in overruling the other exceptions, and for the further reason it was agreed between counsel, repre
senting both sides, that his Honor should decide the facts of the case, and it is reasonable h> suppose that in reaching his conclusions that he did not consider any incompetent or irrelevant testimony, and there is sufficient testimony to sustain his findings, and we see no error of law in any of the exceptions. All the exceptions are overruled.
Judgment affirmed.
The Ci-iiee Justice
conctirs.