This is an action to recover the value of a bale of cotton, which was tried before a magistrate, and resulted in a verdict in favor of the plaintiff, whereupon the defendant appealed to the Circuit Court, which affirmed the judgment of the magistrate, and the defendant again appealed to this Court. The facts are thus stated in the record:
"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 sixteenth 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 admitshaving seen, and to which he admits his attention wasparticularly directed at the former trial, to the effect thatthe railroad would not be liable for goods or freight of anykind left on its platform, until after the shipper had receiveda bill of lading. Although this notice had been displayedfor a long time, it was shown that plaintiff and one or twoother shippers had been in the habit of placing cotton on theplatform as it was purchased, and of getting a bill of ladingfor the full day's purchases just before closing time. (Italics added.) *Page 71
"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 had 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."
The following are the exceptions:
"First. His Honor erred in holding that defendant was responsible for cotton placed on its platform, without a bill of lading having been issued, or defendant's agent being notified; whereas he should have held that defendant's responsibility could not begin until after the cotton had been actually delivered for shipment.
"Second. His Honor erred in not holding that, when plaintiff, with full notice that defendant declined to assume responsibility for property for which bill of lading had not been issued, placed his cotton on the platform, without obtaining a bill of lading or notifying defendant's agent, any loss sustained was the result of his own negligence, and defendant could not be held liable therefor.
"Third. His Honor erred in not holding that, inasmuch as only 15 bales could be accounted for at the time when plaintiff applied for a bill of lading, the legal presumption was that the other bale had been removed by some other than the defendant, and that defendant was not responsible for its disappearance."
The law is well settled that findings of fact by the Circuit Court, on appeal from a magistrate's decision, are not *Page 72 reviewable by this Court. Gossett v. Gladden, 112 S.C. 144,99 S.E. 752; Dingle v. Railway, 112 S.C. 390,99 S.E. 828. Therefore, if there was any testimony sustaining the judgment rendered by the Circuit Court, it cannot be reversed by this Court on the ground that it was not sustained by the testimony.
If the first sentence which we have italicized stood alone, it might be successfully contended that there was not such a delivery of the bale of cotton as rendered the defendant liable for its loss. But the first must be considered, in connection with the second italicized sentence.
In the case of Copeland v. Railway, 76 S.C. 476,57 S.E. 535, this Court, in discussing the question whether there was error on the part of the Circuit Judge in refusing the motion for nonsuit, said:
"It is contended especially that there was no evidence to show that the cotton was ever delivered to defendant in any way to create the relation of shipper and carrier or entail liability for its safekeeping. * * * The plaintiff testified that the cotton was delivered to defendant on its platform marked ready for shipment, before 5 o'clock on October 13, 1903; that no notice or shipping directions were given defendant's agent that day, and no receipt or bill of lading was taken; that the 8 bales were a part of a lot of 25 bales he had agreed to ship the Orangeburg Manufacturing Company, and he was waiting to procure the remainder of the lot before actual shipment, and that in such cases he generally got a receipt from the agent when he had completed the number sold; that he did not act differently with this lot of cotton from what he did when he delivered other cotton; * * * that the agent never gave him personal notice that cotton left on the platform under such circumstances was at the owner's risk. * * * While the testimony tending to show liability of the defendant may be weak, we cannot say the case was improperly submitted to the jury. Whether the defendant had any notice that the cotton was delivered for *Page 73 shipment was left to be inferred by the jury from all thecircumstances of the case, the publicity of the delivery onthe platform, the opportunity for observation, and the courseof dealing with the plaintiff in like cases." (Italics added.)
His Honor, the Circuit Judge, in that case charged the jury as follows:
"It does not make any difference if they did have a custom with other people that it was to be put there before a certain hour and bills of lading given for it, yet, if in their dealing with Mr. Copeland, it was their custom and usage to allow him to put cotton on their platform for the purpose of shipping it, and they afterwards shipped it and gave him a bill whenever he called on them for it, if it was burned while in their custody and care, the railroad would be liable. * * * I charge you further, as a matter of law, for the purpose of having this case settled in the event they want to carry it to the Supreme Court, that whenever the railroad company permits any one to put cotton on their platform for the purpose of shipping without objection on their part, and does anything to lead the parties putting the cotton there to believe that they had accepted it for the purpose of shipping it, and it is afterwards destroyed while in their possession, under those circumstances then the company would be liable."
The foregoing charge was held by this Court to be free from error.
Under the custom and usage that existed between the plaintiff and defendant, the defendant's agent knew that the plaintiff intended to place cotton on its platform during the day for the purpose of shipment, and that it was not necessary for the plaintiff to get a bill of lading when each bale purchased during the day was placed on the platform, but that he would get the bill of lading for the full day's purchases just before closing time.
There is not a particle of testimony tending to show that after the cotton was placed on the platform the plaintiff *Page 74 was in any manner responsible for its loss. He complied in every respect with the custom and usage that prevailed between him and the defendant, and it would be against justice and equity to allow the defendant to take advantage of its own wrong in failing to exercise due care in the protection of the cotton after it had been delivered to the railroad company in the manner contemplated by the custom and usage that existed between these parties.
We concur in the opinion of MR. JUSTICE FRASER that the Copeland case is conclusive of this case, but we cannot agree with him that there are differences in the two cases that render necessary a reversal of the judgment rendered by the Circuit Court.
For these reasons; I dissent.
MR. JUSTICE WATTS concurs.