Behrman v. A.C.L.R. R. Co.

November 4, 1921. The opinion of the Court was delivered by The agreed statement of facts set out in the case is as follows: "This is an action by S. Behrman, plaintiff, against Atlantic Coast Line Railroad Company, defendant, for the Authorities discussing the question as to what constitutes delivery of freight to carrier, are collated in notes in 32 L.R.A. (N.S.) 313 and L.R.A. 1916C, 608. *Page 49 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 *Page 50 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 Copelandv. 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 the 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 *Page 51 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. MR. JUSTICE COTHRAN: 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 *Page 52 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 occurrence 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 fifteen 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 fifteen 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 fifteen 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 *Page 53 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 upon him to establish, at leastprima facie, the existence of that relation. He has attempted to do this by allegation and proof that the cotton was delivered to the railroad company for shipment. These are the elements of the relation, and of course, if he has established them, he is entitled to his verdict. It is pertinent to inquire, therefore, what are the essential elements of delivery, and then to compare the facts of this case with them. In my opinion the authorities fully sustain the following proposition: In order to charge the carrier with the practically absolute liability of a common carrier as compared with the limited liability of a warehouseman, the burden is upon the owner of the goods to establish: (1) That there has been a complete delivery of the goods to the carrier, actual or constructive; (2) that the delivery has been made for *Page 54 shipment, with full shipping directions; (3) that the goods have been accepted by the carrier for immediate shipment or at such time as the convenience of the carrier may suggest; (4) that the goods have gone into exclusive possession of the carrier and that nothing further is to be done with or to them by the owner. The rule is thus clearly stated in 1 Hutch. Carr. (3d. Ed.) § 105: "The delivery must be complete. The duties and obligations of the common carrier with respect to the goods commence with their delivery to him; and this delivery must be complete, so as to put upon him the exclusive duty of seeing to their safety. The law will not divide the duty or obligations between the carrier and the owner of the goods. It must rest entirely upon the one or the other; and until it has become imposed upon the carrier by a delivery and acceptance, he cannot be held responsible for them." The same author says at Section 112: "The delivery must be to the carrier or his agent for immediate transportation; for if the goods are delivered to him to be stored for a certain time or until the happening of a certain event, or until something further is done to prepare them for transportation, or until further orders are received from the owner, the carrier becomes a mere depositary or bailee until the appointed time has expired, or the other contingency happened, upon which the carriage is to commence, or until further orders have been given, as the case may be; for nothing could be more unjust than to permit the owner of the goods to impose upon a mere depositary or warehouseman, whether he has yet become related to the goods as carrier or not, the extremely hazardous responsibility of the common carrier, so long as it might suit his interest or convenience to do so." "The general and well-settled rule is that the liability of the common carrier commences wherever and as soon as the goods have been delivered to and accepted by him solely *Page 55 for transportation, although they may not be put immediatelyin itinere, but are at first, for his (the carrier's) own convenience and preparatory to the voyage or journey for which they are intended, temporarily deposited in his wharf or storeroom. In such cases the deposit is a mere accessory to the carriage, and does not postpone his liability as common carrier to the time when they shall be actually put in motion towards their place of destination." 1 Hutch. Carr. § 113. "To effect a delivery to the carrier there must be either actually or in legal effect a complete surrender to him of possession and custody, and, as a consequence, all control over the goods must be abandoned by the owner until the purpose of the bailment has been accomplished; and until this has been done it cannot be said that the carrier has assumed any responsibility for them as a carrier." 1 Hutch. (3d Ed.) § 119. In Missouri R. Co. v. McFadden, 154 U.S. 155;14 Sup. Ct., 990; 38 L.Ed., 944, the railroad company had actually issued a bill of lading for the cotton, but as a matter of fact it was in the possession of a compress company for subsequent delivery to the railroad company, and was destroyed by fire before actual delivery. The Court held: "The liability of a carrier begins when the goods are delivered to him (the carrier) or his proper servant authorized to receive them for carriage." The quotation from Hutchinson set forth above is approved by the Court, adding: "This doctrine is sanctioned by a unanimous course of English and American decisions," citing a large number of them, and stating, "Indeed, the citations might be multiplied indefinitely." In Watts v. Railroad Co., 106 Mass. 466, it is held: "The question arising in this case relates to their liability in respect to goods received at the depot to be carried. In respect to such goods their liability as carriers commences *Page 56 as soon as the duty of immediate transportation arises, and not while they are delayed for the convenience of the owner." In Turner v. Railroad Co., 86 Conn., 71; 84 Atl., 298; Ann. Cas. 1913d 637, it is held (quoting from syllabus): "The liability of a common carrier of goods commences upon complete delivery of the goods for immediate transportation, and until that time it does not hold the goods in the capacity of a common carrier." The opinion states "The law is well settled that, until the goods to be carried are delivered for immediate transportation, the receiver does not hold them in the capacity of common carrier. His liability in that capacity commences upon the complete delivery of the goods for immediate transportation." In a note to this case it is stated: "The responsibility of a common carrier for goods intrusted to him commences when there has been a complete delivery for the purpose of immediate transportation. If part only of the goods is delivered and such part is lost or injured while awaiting the delivery of the remainder, the liability of the carrier is that of a warehouseman only. The liability as insurer commences only when the duty of immediate transportation arises. Missouri Pac. R. Co. v.Riggs, 10 Kan. App. 578, mem., 62 P. 712; Dunningtonv. Louisville, etc., R. Co., 153 Ky. 388, 155 S.W. 750;Watts v. Boston, etc., R. Corp., 106 Mass. 466; Burrowesv. Chicago, etc., R. Co., 87 Neb. 142, 126 N.W. 1084, 34 L.R.A. (N.S.) 223; Fisher v. Lake Shore, etc., R. Co., 9 Ohio Cir. Dec. 413, 17 Ohio Cir. Ct. 491; Union SteamshipCo. v. Drysdale, 32 Can. Sup. Ct. 379. See, also, Barron v.Eldredge, 100 Mass. 455, 1 Am. Rep. 126; London, etc., F.Ins. Co. v. Rome, etc., R. Co., 144 N.Y. 200, 39 N.E. 79, 43 Am. St. Rep. 752; Stewart v. Gracy, 93 Tenn. 314,27 S.W. 664; Gulf etc., R Co. v. Insurance Co. of NorthAmerica (Tex.) 28 S.W. 237." *Page 57 In Bainbridge Co. v. Railroad Co., 8 Ga. App. 677,70 S.E. 154, the car had been placed upon a side track and loaded and a bill of lading had been issued the carrier, and the shipper had, however, expressly agreed that the shipment should not be deemed delivered to the carrier until it had actually taken possession of it. The Court held that the relation of common carrier had not been created. In Wilson v. Railroad Co., 82 Ga. 386, 9 S.E. 1076, it is held that wood piled up along a railroad track, to be loaded by the owner when he could get the cars, is not completely delivered to the company. In Railroad Co. v. Byrne, 100 Fed. 359, 40 C.C.A. 402, it is held that, where a carrier has constructed pens or yards in order to facilitate the loading of stock, the mere placing the stock in such pens will not be sufficient to impose upon the carrier the duties and liabilities of a common carrier. In Mente v. I.C.R. Co., 7 Orleans App. 154, it is held that, while it is true that the custody of a carrier begins as soon as the goods are delivered by the shipper at the place appointed by the carrier for their reception, and before they are actually placed in the cars, still this custody is not that of a common carrier but that of a warehouseman, unless the goods are so delivered to the carrier that it may immediately and without awaiting any further action on the part of the shipper, commence its service of actual transportation. In Anderson v. Railroad Co. (Miss.) 38 So. 661, the cotton was placed on a station platform built for cotton for shipment. According to custom the shipper requested a car from the nearest station, but the conductor failed to comply with the request. The Court held that, as no bill of lading had been issued, no actual delivery of the cotton made, and nothing to establish an implied acceptance of the shipment, the relation of common carrier had not been established. *Page 58 In Basnight v. Railroad Co., 111 N.C. 592, 16 S.E. 323, it is said: "Taking the facts most strongly in favor of the plaintiff, he asked of the defendant's freight agent a car to load with lumber to go to Philadelphia. The agent pointed out to the plaintiff a car which he might use for the desired purpose. The plaintiff loaded the car with lumber, and finished on the night of the 24th of December, but did not notify defendant's agent that the car was ready for shipment, nor of the name of the consignee. Treating the loading of the car upon defendant's track as a delivery to defendant and an acceptance, it was not yet ready for transportation, for the defendant had not been notified of its readiness, nor to whom it was to be shipped. It was necessary for the defendant to await further orders before shipment. Where goods are delivered to a common carrier to await further orders from the shipper before shipment, the former, while they are so in his custody, is only liable as warehousemen.O'Neill v. New York, C. H.R.R. Co., 60 N.Y. 138;Wells v. Wilmington W.R. Co., 51 N.C. 47 (6 Jones), 72 Am. Dec. 556; Angell, Carr. 129. He is only responsible as carrier where goods are delivered to and accepted by him in the usual course of business for immediate transportation." In Railroad Co. v. Lumber Co., 170 Ala. 627, 54 So. 205, Ann. Cas. 1912d 965, it is held that where a carrier, at the request of a shipper, in pursuance of its usual practice, placed a car on a side track to be loaded with lumber, but failed to move it upon request of the shipper, in the absence of shipping instructions, no responsibility as a carrier arose. In Nelson v. Railroad Co., 157 Ky. 256, 162 S.W. 1129, the carrier had placed a car upon a side track; the car was loaded by the shipper; the carrier was notified of the loading and requested to move it; nothing was said about the shipment of the car or to whom it was to go. The Court held that the relation of common carrier had not been established. *Page 59 In Dunnington v. Railroad Co., 153 Ky. 388,155 S.W. 750, a car had been placed by the carrier on a side track to be loaded by the shipper; it was partly loaded; no bill of lading was issued and no notice given to the carrier; the Court held that, although the carrier placed the car on the siding to be loaded by the shipper and to be moved after being loaded, there was no evidence that it was the custom of the carrier to take charge of a car until notified that it had been loaded, nor of a custom to treat freight thus partly loaded as delivered to and accepted by the carrier, and that accordingly the relation of common carrier had not been established. In Barron v. Eldredge, 100 Mass. 458, 1 Am. Rep. 126, it is held: "The responsibility of a common carrier for goods intrusted to him commences when there has been a complete delivery for the purpose of immediate transportation. * * * The delivery must be for immediate transportation, and, of course, it cannot be complete if anything remains to be done by the shipper before the goods can be sent on their way." In Wilson v. Railroad Co., 82 Ga. 386, 9 S.E. 1076, the Court approved the charge of the trial Judge which was stated to have been: "The Court charged the jury, in substance, that delivery is complete when, actually or in legal effect, the possession is surrendered to the carrier, and the owner abandons all control over the goods until the carriage is completed, and that not until this has been done does the responsibility of the carrier commence, either for loss or detention. Also, that if deposit along the line was made for the convenience of the owner in delivering at some future time, and if the carrier did not assume possession and custody to the exclusion of the owner, the wood was not accepted for shipment, and the carrier's responsibility would not begin until something more was done to accomplish the bailment. Also. that if plaintiff's vendors deposited the wood in this way, and continued to exercise acts inconsistent with its exclusive *Page 60 possession and custody by the company as a common carrier, the bailment would not begin until there was a complete surrender by the plaintiff to the carrier for shipment. Under the facts in evidence, and according to the authorities, these instructions were correct. Hutch. Carr. §§ 82-99, inclusive; 2 Ror. R.R., 1279 et seq. We think it clearly appears that under the system which both parties had in contemplation it was expected that, before delivery was consummated, the owner would either load the cars himself, or have it done by the company at his expense, after special request. Delivery on board the cars, according to that system, would terminate the plaintiff's possession, and be the inception of possession by the carrier." In Dixon v. R. Co., 110 Ga. 173, 35 S.E. 369, the syllabus by the Court is: "The relation of shipper and carrier does not begin between the owner of goods and a railway company, though the former may have delivered the goods to the latter, if after such delivery anything required, either by law or the contract, remains to be done by the shipper, and in such case the rights and liability of the company are those only of a warehouseman." The opinion declares: "While the company, therefore, retained this property on board its cars at its depot, on account of the failure of the shipper to comply with the conditions precedent to its shipment, it occupied, as to him, the position of a warehouseman." In a note to L.R.A. 1916C, 612, the author states the rule thus: "As a general rule the responsibility of a common carrier for goods received by it begins as soon as the same are delivered and ready for immediate transportation. But, on the contrary, if the goods when so deposited are not ready for immediate transportation, and the carrier cannot make arrangements for their carriage to the place of destination *Page 61 until something further is done, or some further direction is given or communication made concerning them by the owner, the deposit must be considered to be in the meantime for his convenience and accommodation, and the receiver, until some change takes place, will be responsible only as a warehouseman. The party bringing the goods must first do whatever is essential to enable the carrier to commence, or to make needful preparations for commencing, the service required of it before it can be made liable or subjected to responsibility in that capacity." In Railroad Co. v. Lowery (Tex.Civ.App.)155 S.W. 992, it is held that, in order to constitute a delivery, complete control of the goods must be given to the carrier; that is to say, the owner must not retain any manner of control over the goods, and if any one else retains such control, it must be as the agent of the carrier and not as the agent of the shipper. The case of Whitney v. Railroad Co., 38 S.C. 265,17 S.E. 147, 37 Am. St. Rep. 767, is one of questioned delivery to the consignee after the carriage had terminated. The car containing the cotton had been placed on a spur track built for the manufacturing company; the bill of lading had been surrendered; the freight had been paid; the seals had been broken by the manufacturing company and the cotton partly unloaded. The plaintiff contended that it had not been delivered. The Court held otherwise, and applied the same test to delivery by the carrier as should be applied to delivery to it, viz., the possession and control of the property. It is the converse of the case at bar, but settled by the same principle. In Brown v. Railroad Co., 19 S.C. 39, it is assumed to be the law that no liability as common carrier attaches until the goods shall have come into possession of the carrier and under its control. In Railroad Co. v. Byrne, 100 Fed. 359, 40 C.C.A. 402, it is held that a railway company which permits stock to be *Page 62 placed in the pens which it has prepared by the side of its tracks to facilitate loading and unloading does not thereby receive the stock for shipment, or take possession or assume charge of it as a common carrier; that the limit of its liability is that of a warehouseman, to exercise ordinary care in the construction and maintenance of its pens. In 10 C.J. 226, it is said: "It is well settled that, where the carrier is directed by the shipper to do that which is incompatible with its common-law duty as carrier, as, for instance, not to forward the goods until further orders, there is no such delivery and acceptance as will render the carrier liable as such. Under these circumstances it is liable only as an ordinary bailee, so long as such special instructions are operative." In 10 C.J. 225, it is said: "Delivery cannot be complete if anything remains to be done by the shipper before the goods can be sent on their way." In Stapleton v. Railroad Co. 133 Mich. 187,94 N.W. 739, it is held that, if the goods are merely placed in the carrier's depot for the shipper's convenience, and are not ready for shipment until the shipper has done something further to them, the carrier is not liable as a common carrier but only as a warehouseman. In Missouri P. Co. v. Riggs, 10 Kan. App. 578,62 P. 712, it is held that, where goods are delivered to a carrier to be shipped, but are not to be shipped until other goods which are to be shipped with them are delivered, the liability of the carrier in the meantime is only that of a warehouseman. The Court declares: "Where goods are received by the carrier to be forwarded in the usual course of business, the liability of a common carrier attaches immediately; but where the goods are not to be shipped in the regular course of business, but are to be retained at the depot at the shipper's instance, the liability is that of a warehouseman only. The rule, broadly stated, *Page 63 is that if, after the delivery of the goods for shipment, anything remains to be done by the shipper, the liability of the carrier as an insurer does not attach, and it is responsible only as a warehouseman." In Railroad Co. v. Powers, 73 Neb. 816, 103 N.W. 678, it is held that where the stock, while in the carrier's pens or yards, awaiting transportation, is subject to the right of the shipper to remove it when necessary for food and water, the carrier's liability will be no greater than that of an ordinary bailee, and that he will be liable only where he has failed to exercise ordinary care. The syllabus by the Court states: "When a shipper surrenders the entire custody of his goods to a common carrier for immediate transportation, and the carrier so accepts them, the liability of the carrier at once attaches." "Such liability does not attach until the goods are unconditionally delivered by the shipper and accepted by the carrier." In Grand Co. v. Ullman, 89 Ill. 244, it is held in substance that, where goods are delivered to a railroad company for transportation at its earliest convenience, nothing further remaining to be done in reference to them by the owner, the company is liable as a common carrier for their loss. The doctrine of constructive delivery without notice to the carrier is well recognized; it may exist by an express agreement that a deposit of goods at a particular place shall be a valid delivery, or by a well-known and established custom to receive the goods in that way. Such an agreement, either expressed or implied, must necessarily go to the extent that such deposit shall be accepted as a delivery for transportation; it surely cannot exist in the face of an express notice of which the owner has knowledge, that it shall not be so accepted without the issuance of a bill of lading. In O'Bannon v. Exp. Co., 51 Ala. 481, it is held that, to render a carrier liable as a common carrier for the loss of *Page 64 goods, there must have been an actual delivery of the goods to him, or a constructive delivery, with notice to him of an intention thereby to place them in his care and custody. Merely placing them in such a position that he could easily have taken them, but without calling his attention to them, is not sufficient. In Southwestern R. Co. v. Webb, 48 Ala. 585, it is held that, in an action against a railroad company for failure to deliver cotton received by it for transportation, the railroad company is not liable as a common carrier for cotton stolen or lost after deposit by the owner upon a station platform, unless it be shown that the company or its agents had notice of the deposit and received the cotton for transportation as common carrier. The case of Copeland v. Railroad Co., 76 S.C. 476,57 S.E. 535, is, in my opinion, one of an entirely different character, and has little, if any, application to the facts of the case at bar. While the question does not seem to have been raised in the case, as a matter of fact it was a case of liability, independently of the relation of common carrier, under what is known as the Fire Statute (Section 3226 of Civ. Code 1912); an absolute liability upon destruction of property by fire which originates upon the right of way of a railroad company; the only exception being where the property has been placed upon the right of way unlawfully or without the consent of the railroad company. It was not contended by the company that the cotton had been placed on the platform without its consent; on the contrary, the custom had long existed with their consent. The judgment is easily sustainable, therefore, under the statute. But, considered as an action not under the statute, but against the railroad company as a common carrier, as it in fact appears to have been considered by the Court, the facts are clearly distinguishable from those of the case at bar in the following particulars: (1) The cotton was deposited on the platform "marked ready for shipment"; in the case *Page 65 at bar that fact does not appear; in fact it was not marked for shipment at all, and was not ready for shipment until other cotton making a carload had been purchased. (2) The agent there gave the owner no notice that cotton left on the platform under such circumstances was at the owner's risk; here the agent, with the instinct of a burnt child, posted a notice, which the plaintiff admits he saw and which was particularly called to his attention before the loss, 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." (3) There was evidence that after the fire the salvage of the cotton was sold by the railroad company, from which it might have been inferred that they acknowledged responsibility for the cotton; no such circumstance appears here. The charge of the Circuit Judge, approved by this Court, exactly fits the facts of this case: "If it was not the custom of the defendant company in dealing with Mr. Copeland to allow him to put cotton on their platform for the purpose of shipping it and make themselves liable for it, unless he called for a bill of lading and notified them that it was there for shipment, then, under those circumstances, he would not be entitled to recover." And again: "Whenever a 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." How is it possible to conclude that the railroad company induced the owner to believe that they had accepted the cotton placed upon the platform, even without objection, for shipment, in the face of the notice referred to? A man must be endowed with a feeble brain indeed to believe that *Page 66 the railroad company accepted the cotton for shipment when he placed it upon the platform without their knowledge when he was told specifically that they did not intend to accept it until a bill of lading had been issued. In my opinion the testimony does not tend to establish a single one of the elements essential to the relation of common carrier. It is not pretended that there was a complete delivery of the 16 bales of cotton at the time the lost bale was placed upon the platform. If the shipment included only that particular bale it is not claimed that it was actually delivered to the railroad company; the contention is that it was constructively delivered by placing it on the platform without notice to the company, and in the face of an express declaration and notice to the plaintiff that it would not be considered as delivered or accepted until the bill of lading had been issued. It was placed there by the plaintiff for his convenience until the remainder of the carload could be assembled. In the light of the notice he received, it must be assumed that in doing so he undertook to shoulder the risk of loss. The so-called delivery was not for immediate shipment, as the plaintiff admits that the shipment was not to go forward until the carload had been made up; the cotton was not marked with any shipping directions, and none given to the carrier. The cotton had not gone into the exclusive possession of the carrier, which is absolutely essential to the relation. The plaintiff had full control of it and could the next minute have moved it off of the platform. That there was something further to be done by the owner to the shipment is admitted by his statement that the Murray bale was to remain on the platform until the remainder of the carload was completed. No notice of the placing of the cotton on the platform was given to the agent, which is necessary to constitute a constructive delivery, unless the custom of the company justified *Page 67 his failure to do so, of which there is no evidence. On the contrary, if he had given such notice it could not have constituted constructive delivery, which is a question of intention, in view of the positive notice repelling any such implication.