Behrmann v. Atlantic Coast Line R. Co.

• Decision Date: 04 November 1921
• Docket Number: 10748.
• Parties: BEHRMANN v. ATLANTIC COAST LINE R. CO.
• Court: South Carolina Supreme Court

109 S.E. 397

118 S.C. 48

BEHRMANN v. ATLANTIC COAST LINE R. CO.

No. 10748.

Supreme Court of South Carolina

November 4, 1921

Appeal from Common Pleas Circuit Court of Berkeley County; Ernest Moore, Judge.

Action by S. Behrmann against the Atlantic Coast Line Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed.

Gary C.J., and Watts, J., dissenting.

Rutledge Hyde & Mann, of Charleston, and Winter & Winter, of Monck's Corner, for appellant.

John O Edwards, of Monck's Corner, for respondent.

FRASER J.

The agreed statement of facts set out in the case is as follows:

"This is an action by S. Behrmann, plaintiff, against Atlantic Coast Line Railroad Company, defendant, for the value of one bale of cotton, alleged to have been delivered by plaintiff to defendant at Monck's Corner, S. C., on or about November 20, 1915, for shipment to Charleston, S. C., and not accounted for to plaintiff. The action was tried before Magistrate Altman, at Monck's Corner, January 25, 1917, and resulted in a verdict for plaintiff; whereupon the defendant appealed to the circuit court, Judge Ernest Moore presiding. Judge Moore having affirmed the judgment of the magistrate, notice of appeal to the Supreme Court was given, and the case now comes up on appeal, on the following agreed statement of facts:

At the trial in the magistrate's court it was shown that the plaintiff was in the habit of buying cotton from the farmers, changing the marks, and shipping en bloc. On the day in question this particular bale of cotton was placed on defendant's platform at Monck's Corner by B. F. Murray, who notified plaintiff. Plaintiff paid Murray for the cotton and changed the mark, but did not notify defendant's agent that the cotton was on the platform. During the day plaintiff bought other cotton--a total of 16 bales that day. Late in the afternoon, plaintiff applied to defendant's agent for a bill of lading for the 16 bales. The agent agreed to give him a bill of lading for 15 bales, all that he could find on the platform, but said he knew nothing about the 16th bale, and declined to give a bill of lading for it. No trace of the missing bale has ever been found.

It was shown on behalf of defendant that there had been a prior suit between the same parties for a missing bale of cotton, for which defendant had been required to pay. Defendant posted a notice at its depot, which plaintiff admits having seen, and to which he admits his attention was particularly directed at the former trial, to the effect that the railroad would not be liable for goods or freight of any kind left on its platform until after the shipper had received a bill of lading. Although this notice had been displayed for a long time, it was shown that plaintiff and one or two other shippers had been in the habit of placing cotton on the platform as it was purchased, and of getting a bill of lading for the full day's purchases just before closing time.

Defendant contended at the trial, and in the circuit court, that it could not be held responsible for cotton or other property placed on its platform, unless it has issued a bill of lading, or at least had been notified and had accepted the property for shipment. Plaintiff claimed that, since the custom had been for merchants to leave cotton on the platform until the close of the business day, and then get a bill of lading for the entire amount, defendant was estopped from disclaiming responsibility for cotton placed on its platform, even though a bill of lading had not been issued, and the agent had not been notified.

The case comes before this court on the same questions that were raised in the magistrate's court and in the circuit court."

This case is very nearly the same as the case of Copeland v. Railway, 76 S.C. 476, 57 S.E. 535. The differences are fatal to the respondent's view. The Copeland Case was a "fire case," but it was not tried on that theory, but on the theory that the cotton had been delivered to the railway as a common carrier. In that case there was no notice limiting liability. The respondent claims that, although in this case there was a notice, it had been disregarded, and it was a question of fact as to whether it had been waived or not. In this the respondent is in error. The notice did not forbid the placing of cotton on the platform, but limited the liability to the time of the giving of a bill of lading. There was no evidence that this was disregarded. If the cotton had been burned, the custom might have been construed as consent to the placing of the cotton on the right of way. The cotton was not burned, but stolen. The railway is liable for things burned on, but not for things stolen from, the right of way. The difference is fatal to the respondent's case. The judgment in the Copeland Case was affirmed on the scintilla doctrine. There is another difference, and that is that the unburned cotton was taken by the railway and sold for its own account. That was evidence from which a ratification might have been inferred. There are no such facts in this case.

Making allowances for the differences in the two cases, the Copeland Case is conclusive of this case, and the judgment appealed from is reversed.

COTHRAN J.

I concur in the opinion rendered by Mr. Justice FRASER. The action, as the agreed case shows, was for the value of a bale of cotton, alleged to have been delivered by the plaintiff to the defendant, for shipment, and not accounted for by the defendant. It is therefore distinctly an action against the railroad company as a common carrier, and not as a warehouseman. The onus was upon the plaintiff, therefore, to show facts sufficient, at least prima facie, to establish the relation of the railroad company to him to have been that of a common carrier. The undisputed facts are as follows:

The plaintiff is a cotton buyer at Monck's Corner; he was in the habit of buying cotton from farmers who brought it into town in wagons; after a sale was consummated the farmer would have the cotton weighed and placed upon the depot platform, after which it was settled for by the plaintiff at his place of business; it was the custom of the plaintiff and other buyers to leave the cotton thus placed on the platform until the close of the business day, and then get a bill of lading for the entire lot purchased and placed during the day, the railroad company receiving no specific notice of such placing; there had been a prior suit between the same parties for a bale of cotton that had been so placed but could not be found, and the defendant was required to pay for it; the defendant posted a notice at its depot, which plaintiff admits having seen, and to which he admits his attention was particularly directed at the former trial, to the effect that the railroad would not be liable for goods or freight of any kind left on its platform until after the shipper had received a bill of lading. For the purpose evidently of counteracting the effect of this notice, this statement appears in the case:

"Although this notice had been displayed for a long time, it was shown that plaintiff and one or two other shippers had been in the habit of placing cotton on the platform as it was purchased, and of getting a bill of lading for the full day's purchases just before closing time."

During the day of the particular occurence, the plaintiff bought a bale of cotton from a farmer by the name of Murray. Murray placed the bale on the platform and notified the plaintiff, not the defendant. The plaintiff paid Murray for the cotton and changed the marks, but did not notify the defendant that the cotton was on the platform. During the day he bought 15 other bales which were similarly placed. After the close of business, the plaintiff applied to the railroad agent for a bill of lading for the Murray bale and the other 15 bales which he had bought during the day. The Murray bale could not be found. and the agent declined to issue a bill of lading for more than the 15 bales then on the platform. No trace of the missing bale has ever appeared, and there is not the slightest explanation in the evidence as to the cause of its disappearance. It was not burnt, but whether stolen from the platform or shipped in error to another point does not appear.

The plaintiff sued in the magistrate's court for the value of the lost bale, and recovered a judgment; on appeal to the circuit court the magistrate's judgment was affirmed, and from that order the defendant has appealed.

The facts are conceded. There are no issues of fact in the case, and therefore the rule that this court in a law case has no power to review the findings of fact below is without applicability. The conclusions to be drawn from these admitted facts are legal, as to which this Court has ample power of review, Whitney v. R. Co., 38 S.C. 365, 17 S.E. 147, 37 Am. St. Rep. 767, where it is held:

"While it may be admitted that a question of delivery is a mixed question of law and fact, yet there was no conflict of testimony here. Matters of law may be passed upon by the court."

The question of law for determination is: Do these facts tend to establish the relations of common carrier on the part of the railroad company? If they do not, as I shall endeavor to demonstrate, the judgment should be reversed. There is no allegation and no effort on the part of the plaintiff to establish the relation of warehouseman, but he has chosen to attempt the establishment of the relation of common carrier a relation which generates a liability so drastic that relief can be had only upon the ground that the loss occurred by act of God or the public enemy. It is but fair, therefore, that in making that choice the plaintiff must take it with its concomitant conditions; that the burden is...