September 1, 1914. The opinion of the Court was delivered by The respondent is engaged in the business of cleaning rice for the producers. When this rice is cleaned and put into sacks, it is placed in respondent's warehouse. The producer sells the rice in the warehouse and the purchaser is allowed time to remove it.
The appellant purchased a lot of rice in these warehouses and before its removal, a storm came and flooded the warehouse and injury the rice. The appellant brought this action for the injury to the rice. The respondent admitted the damage while in its possession, but claimed that the bailment was gratuitous and that the injury was caused by the act of God. The verdict was for the defendant and the plaintiff appealed upon nine exceptions, but argues four propositions.
The first proposition is as follows: *Page 490
"That the rule of law in this State, in the case of a warehouseman, is that upon admission or proof of delivery of goods and failure to return same in condition received, the burden of proof is upon the warehouseman to show that the loss or damage was not due in any way to its negligence and that if such loss or damage occurred through the act of God, that such act of God was the entire cause of such loss or damage. That the burden of proof is the same whether the bailment be for hire or gratuitous, the only difference being that in case of a gratuitous bailment the warehouseman is liable holy for gross negligence."
His Honor charged the jury as follows:
"Now, the plaintiff has to prove what he alleges and in a case like this they can not recover unless they can prove negligence or carelessness on the part of the defendant."
In Fleischman v. Ry., 76 S.C. 247, 56 S.E. 974, 9 L.R.A. (N.S.) 519, this Court held that the burden of proof was on the warehouseman for the reason that the facts were within the knowledge of the defendant and not with the plaintiff. See, also, the recent case of Meyer v. RailroadCompany, 92 S.C. 104, 75 S.E. 209.
His Honor charged the jury that the act of God must be the entire cause of the loss with sufficient clearness.
This proposition is sustained in part, for the reason above set forth.
The second proposition is as follows:
"That even if the bailment be gratuitous, a warehouseman is responsible for its gross negligence, and to subject it to liability therefor it is not necessary that it should have acted with a conscious failure to observe due care, that is in a wanton, wilful and reckless manner, unless in addition to compensatory damages punitive damages are sought for such wanton, wilful and reckless acts."
This proposition can not be sustained; if the appellant desired the trial Court to differentiate between "gross negligence" *Page 491 and a "conscious failure to observe due care," it ought to have made a request.
The third proposition is as follows:
"Negligence is the absence of due care, and what a bailee chooses to do with his own property or what risks he may assume in connection therewith has no relevancy to and is no test of the legal obligation to the property of a bailor, which the law imposes."
This proposition is sustained. The respondent has not cited any binding authority which holds that a warehouseman can reduce his liability for goods of others entrusted to him by neglecting his own.
The fourth proposition is as follows:
"That in addition his Honor charged directly on the facts of the case, contrary to the constitutional inhibition 3b, 4 as set out in the third and ninth exceptions of the appellant."
This proposition is sustained. The charge that the defendant was not liable for the consequences of a storm that had not only occurred twice in a generation, was a charge on the facts. The federal case relied upon is not authority in our Courts. The latitude allowed a federal Judge in charging a jury on the facts is great. In our State no charge on the facts is allowed. The third exception has already been considered.
The respondent seeks to sustain the judgment because it claims its motion for a nonsuit should have been granted. There was evidence to go to the jury. Inasmuch as the case has to go back for a new trial, a discussion of the facts would be improper.
The judgment is reversed and the case remanded for a new trial.
MR. JUSTICE HYDRICK concurs in the result only.
MR. JUSTICE GAGE dissents. *Page 492