Marlow v. Conway Iron Works

• Decision Date: 04 December 1924
• Docket Number: 11614.
• Citation: 125 S.E. 569,130 S.C. 256
• Parties: MARLOW v. CONWAY IRON WORKS.
• Court: South Carolina Supreme Court

125 S.E. 569

130 S.C. 256

MARLOW v. CONWAY IRON WORKS.

No. 11614.

Supreme Court of South Carolina

December 4, 1924

Appeal from Common Pleas Circuit Court of Horry County; Wm. H Townsend, Judge.

Action by H. L. Marlow against the Conway Iron Works. Judgment for plaintiff, and defendant appeals. Affirmed.

Sherwood & McMillan, of Conway, for appellant.

Robt. B. Scarborough and Cordie Page, both of Conway, for respondent.

MARION J.

This is an action to recover the value of a bale of cotton which plaintiff alleges he delivered to the defendant in the form of "long staple seed cotton, to be ginned and baled and returned" to him, and which defendant failed and refused upon demand and after payment of ginning charges to return or redeliver to the plaintiff. Plaintiff further alleges that the defendant disposed of and converted the cotton. The defendant, by its answer, entered a general denial, and set up the following additional defenses:

"That, if the plaintiff had the cotton described in his complaint ginned at this defendant's gin, this defendant alleges that it completed its whole duty to the plaintiff when the process of ginning was completed; and that it is and was in no way responsible for the safe-keeping, safe-storing or warehousing of the said cotton, and, if the plaintiff in fact lost one bale of cotton as alleged in his complaint, it was due, caused, and occasioned by his, the said plaintiff's, own negligence and carelessness, and after notice to him the said plaintiff and the public that this defendant assumed no responsibility for cotton left on its premises."

Upon all of the evidence adduced at the trial of the issues thus joined the circuit court directed a verdict for the plaintiff for the value--to be ascertained and fixed by the jury--of the bale of cotton in question. From judgment on the verdict rendered the defendant appeals.

The substantial question raised by the appeal (exception 5) is whether the circuit court erred in sustaining plaintiff's motion for a directed verdict. The facts of the case pertinent to a determination of that question, which we think the record warrants us in accepting either as undisputed or as established by the evidence to the exclusion of any other reasonable inference, are as follows:

In October, 1918, J. W. Marlow, living at Burgess, Horry county shipped by way of the "Waccamaw Line" of steamers, to the defendant at Conway, two bales of long staple seed cotton to be ginned and baled. One of these bales was the property of the plaintiff, H. L. Marlow. The cotton was received and ginned by the defendant. Neither the plaintiff nor his agent, J. W. Marlow, was present when the cotton was received and ginned. After the cotton was ginned and packed, it was placed by defendant on a platform outside of its ginhouse. While the cotton was being ginned, the drayman of one Percy Hardwicks, a local cotton buyer, came to Dozier, the manager of the ginnery and "asked for H. L. and J. W. Marlow's cotton." In response to this request Dozier, the manager, said: "H. L. Marlow's bale is just outside of the house, the other is not ginned yet." The defendant had no instructions or other express authority to deliver the plaintiff's cotton to Hardwick or his drayman. About a week after the cotton was ginned J. W. Marlow saw Dozier, the manager, paid for the ginning, and demanded the baled cotton. It was not produced, and plaintiff's bale was never thereafter found or delivered to him. The bale of J W. Marlow was found in the possession of Percy Hardwick. The defendant had no inclosure and no arrangement for caring for cotton after it was ginned and baled except by placing it on a platform outside the ginhouse. The defendant had posted signs "on the warehouse" (ginhouse) to the effect that it was "not responsible for the cotton after it was out of the house" (ginhouse). No precautions were used to prevent cotton from being stolen. It was the custom or habit of the defendant to permit local cotton buyers to take away the cotton placed on the platform without giving a receipt therefor and without an order from the owner of the cotton.

The circuit judge on the motion to direct a verdict for the plaintiff held as follows:

"The undisputed evidence shows that the cotton was delivered by the plaintiff's agent to the defendant for the purpose of being ginned in consideration of a certain price to be paid for such service by the plaintiff or his agent, and such price was subsequently paid, but the cotton was never delivered by the defendant to the plaintiff; and the defendant has introduced no evidence showing that it had properly accounted for the cotton, and does not plead, as an affirmative defense, that it discharged the duty of using due care for the protection of the cotton while left in its custody. On the contrary, the only affirmative defense set up is that the loss of the cotton was due to the plaintiff's own negligence and carelessness."

The most that defendant can claim under the pleadings and the evidence is that the plaintiff's cotton was delivered to it to be ginned under a special contract of bailment whereby the defendant's liability as bailee was limited, in accordance with the terms of the notice posted on the ginhouse, and in accordance with the custom and usage of ginners in that locality, by the stipulation that the ginning company would "not be responsible for cotton outside of the ginhouse." It is not disputed that, when plaintiff's cotton was ginned and placed on defendant's platform outside the ginhouse, it was still on the premises and in the possession and control of the defendant. It does not appear that when the cotton was so ginned and placed the plaintiff or any representative of his was present or had any knowledge of the fact that the cotton had been ginned and placed on the platform. In that situation, what is the effect upon the defendant's liability of the restriction claimed? In the absence of special contract the relation of the parties was unquestionably that of bailor and bailee under an ordinary bailment for hire, or bailment for mutual benefit. Foster v. Taylor, 2 Brev. 348; McCaw v. Kimbrel, 4 McCord, 220. If the bailee "gives the bailor notice of special terms and the means of knowing what they are; and if the bailor chooses to make the bailment, he is bound by them, provided the contract is not in violation of law or of public policy, and that it stops short of protection in case of fraud or negligence of the bailee; and provided further that the terms of the contract are clear, such stipulations being to be strictly construed." 6 C.J. 1112, 1113, § 44; Hanes v. Shapiro, 168 N.C. 24, 84 S.E. 33. In the light of the foregoing principles it would seem clear that the limiting contractual stipulation here invoked may not soundly be construed in any view to reduce defendant's liability below that of a gratuitous bailee. In the Mississippi case of Batesville Gin Co. v. Whitten, 96 Miss. 210, 50 So. 695, it is said:

"The gin company had the following notice posted in many places in the gin, viz.: 'Notice. Not responsible for cotton left on our yard after it is baled. Batesville Gin Company.' In short, after ginning and packing, the cotton was held at the risk of the party to whom it belonged, and all parties were so notified. Of course, even in this condition of affairs, it was the duty of the gin company

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