This is an action to recover for a bale of cotton lost from the defendant's platform at Monck's Corner, S.C. The facts appear in the agreed statement, and are undisputed, the bale was deposited on the platform during the day, and a bill of lading for this bale and 15 other bales, which had also been deposited on the platform by or for the plaintiff, was applied for late in the afternoon. The bale in question was then missing, and has never been discovered. No notice was given to defendant's agent when the bale was left on the platform, and there was no evidence to show how long the bale remained on the platform before its removal, or that it was ever brought to the knowledge of defendant's agent that it was there prior to the application for the bill of lading and discovery of the loss. Plaintiff, who was a cotton buyer, was in the habit of buying cotton during the day, having the cotton bought placed on the platform, and getting a bill of lading en bloc at the close of the business day. The defendant, having had previous trouble with the plaintiff about the similar loss of a bale of cotton, had posted a notice to the effect that it would not be responsible for property left on the platform unless a bill of lading had been issued for same; and this notice had been brought to the personal attention of the plaintiff.
The plaintiff based his right to recover on the ground that the deposit of the bale on the platform amounted to delivery to the carrier for shipment, rendering the carrier liable as insurer; there was no claim that the cotton had been deposited with the carrier as warehouseman, or any proof of its negligence in that capacity. The issue therefore narrows *Page 68 to the consideration of the question whether or not there was evidence establishing, or tending to establish, a delivery of the cotton to the carrier for shipment.
The essential elements of delivery to the carrier for shipment were lacking. These elements include (1) complete surrender of the goods into the custody of the carrier, with instructions to the carrier for their shipment, and (2) the acceptance, actual or implied, of the goods by the carrier for shipment. 5 Ency. L. (2d Ed.) 181; 4 R.C.L. 167; 1 Hutch. Carr. §§ 105, 113, 119. Mere deposit upon an open railroad platform cannot per se be regarded as a delivery into the exclusive possession of the railroad. No notice was given the defendant's agent that the bale was delivered ready for shipment, and in fact it was not ready for shipment when deposited; for it is conceded that the bale of cotton was placed on the platform by the plaintiff to await the collection of the day's purchases before shipment. These facts warrant no other inference than that the cotton was placed on the platform by the shipper for his convenience and remained in his control at least for the purpose of completing the lot to be shipped. Since no notice had been given the agent that the bale had been placed there for shipment, there was nothing to invoke the custody of the carrier or prevent the shipper from removing the bale of cotton at will. Moreover, in the absence of shipping instructions, it is impossible to see how there could have been an acceptance of the bale for shipment; neither the shipper, the assignee, the route, or destination was known to the carrier. Even the subject of the shipment — the existence of the bale of cotton on the platform — was unknown. How, then, could there be any meeting of minds or contract of carriage, actual or implied, which is necessary to initiate the relation of shipper and carrier?
The facts in this case do not show a constructive delivery to the carrier by deposit of the bale on the platform pursuant to an agreement or custom between the shipper and carrier *Page 69 to deliver in that manner, as in the case of Copeland v. RailwayCo., 76 S.C. 476, 57 S.E. 535. In the Copeland Case the cotton was placed on the platform marked ready for shipment; it remained there for sufficient time (not having been destroyed until some hour of the night following the day of delivery) to warrant the inference that the carrier knew it was there; and the custom by the carrier to accept shipment in this manner without objection was shown. This Court held that the evidence to sustain the judgment against the carrier was "weak," but under the scintilla doctrine was properly submitted to the jury, whose verdict concluded the issue. In the case at bar the material facts are different, and clearly distinguish the cases. For aught that the evidence here discloses, the bale in question may have been removed immediately after having been placed on the platform. The posted notice — actual knowledge of which had been brought to the attention of the plaintiff — that the railroad company would not be responsible for goods left on the platform unless a bill of lading was obtained — prevents the inference of a custom or tacit agreement to accept such deposit as delivery for shipment.
That the plaintiff, notwithstanding this notice, was in the habit of placing cotton on the platform as bought, and getting a bill of lading at the end of the business day, does not show a disregard or waiver of the notice by the railroad in dealing with the plaintiff. On the contrary, this course of dealing was perfectly consistent with the notice given, and the railroad company had the right to assume that cotton placed by the plaintiff on the platform remained at his risk until a bill of lading was applied for. If such notice is to be held ineffective, and in the face of it a mere deposit on the platform to render the carrier liable, then the railroad, if it desires to escape unknown and unknowable responsibility, would be without recourse save to fence off its platform from the public or place a guard about it.
I therefore concur in the opinion of MR. JUSTICE FRASER. *Page 70