
    Maybin and Van Wirt vs. The South Carolina Railroad Company.
    Por the plaintiffs, doing business in Columbia, goods were shipped from New York to Charleston to the care of the So. Ca. Railroad Company, whose course of business it was to receive and forward goods so addressed: — Seld, that the company were not liable as common carriers until the goods were received by them for carriage.
    That considering them as forwarding, agents, the rule as to their liability was not the same as that which applied to them as common carriers.
    Considering them as forwarding agents they would be liable for refusing to receive, unless they showed good excuse for not receiving; and, after receiving, they would be liable for not taking all the care which a prudent man would about his own business.
    IN THE CITY COURT OF CHARLESTON, JULY TERM, 1854.
    The report of his Honor, the Recorder, is as follows:
    
      “ This was an action brought by plaintiffs, merchants, (residing, I believe, in Columbia,) against the defendants, for damage to goods entrusted to their care, or rather, perhaps, for their not having carried and delivered them, according to contract. The case was made up partly by admissions or concessions of the respective Counsel, and in the rest by some documentary evidence, and the testimony of witnesses on the trial. In my notes of the evidence will be found references to certain letters passing between the parties or their agents, in regard to the precise contents of which, (having been furnished with no copies,) I invite the appellants, if they deem it necessary to their case, to append copies to my report.
    “ The case presented some very interesting questions; and except in the grounds of complaint on the part of the defendants is to be regarded, (I presume,) as having been fairly submitted to the jury, upon the facts, and that the law was pro-perlj expounded by tbe Court. It will be seen that tbe case submitted was not one of tbe more usual character, that of an ordinary shipment (so to speak,) of goods, at Charleston, by tbe Railroad, to be delivered to tbe owner or consignee, at a specified point, as for instance, at Columbia. In such cases, tbe contract is usually evidenced by tbe written aclmowleclg-. ment of the receipt of the goods furnished by tbe Railroad to tbe consignor or owner, and containing a statement of the gist of tbe contract, to wit: to convey and deliver to tbe consignee tbe goods consigned. The goods, in this case, came from New York by ship, directed to the plaintiffs, Maybin & Yan Wirt, Columbia, to the care of the South Carolina Railroad Company, {the defendants.) Hence, tbe liability of the defendants depended upon their obligation, express or implied, to take charge' ■ of these goods, and to forward and deliver them safely to tbe owner or consignee, at tbe place of delivery. Tbe goods were never carried or delivered at Columbia by tbe defendants, or any one, and tbe main question was, what was tbe obligation assumed, or contract made, or to be implied as made, between tbe Railroad Company and tbe plaintiffs, for the reception, safe carriage and delivery of the goods in question ? What character did tbe defendants occupy, in regard to goods arriving, (say) by ship at tbe port of Charleston, directed to their care, to some point of delivery on their road, (say Columbia ?) This business of receiving freight at Charleston from foreign ports, directed to tbe interior, of course could not have been intruded upon tbe Company, or any obligation imposed upon them in regard to their carriage against their will. It would have been a matter entirely for tbe owner or consignee, or their agent at Charleston, to have shipped by the Railroad or not, as he may have thought proper, and by contracting pro re nata with the Railroad. Company, to make them answerable by a new contract, for the safe delivery of the goods at the point designated.
    “ Had the defendant engaged in this business of receiving at the Port of Charleston, and forwarding to their respective designations, goods shipped from abroad for the interior of the country, on. the line of their road ? This allegation on the part of the plaintiffs depended upon the proofs submitted to the jury. Had they engaged in such business ? This point was left as a matter of fact for the jury to determine. Upon an inspection of the testimony, it will be seen how far there was any proof to warrant such a conclusion. Without interfering (as I believe,) in the least degree, with the province of the jury, it seemed clear to me upon the evidence adduced, that the defendants had invited and undertaken to execute this sort of business, to wit: that of receiving and forwarding, by Railroad, to the interior, such consignment as might be addressed to their eare. The jury, in finding a verdict for the plaintiffs, must have been satisfied with the proofs, that the defendants were in the habit and accustomed to this sort of business, although there was no express proof on the trial of their having advertised to this effect. The defendants appear to have had an agent for the express purpose of receiving and forwarding freight, thus coming to Charleston by ship from abroad, and consigned to their care. The point of the liability of the defendants in this case, was not that of loss incurred by negligent carriage, so much as for non carriage, and for not taking possession and eare of the goods on their arrival at Charleston. It appeared to me that the Company had, in undertaking this business, assumed, of course, all the obligations and duties of any other consignee at the port of delivery, and that' the public had, under this habit, or custom of the Company, alright to look to them for the discharge of the duties devolving upon a consignee. That although, as it would appear, by some subsequent regulation, made by the Company after this general assumption by them of the duties of the consignee, they should have (among themselves) determined to have nothing to do with shipments, in regard to which a claim of average on the score of injuries in the voyage to Charleston may have been made, this would not affect or impair the rights of any one dealing with them, on the faith of a well known habit or usage of trade on the part of the defendants, p,nd in regard to which habit or custom, the plaintiffs, as far as it would appear, may never have known or heard of any subsequent limitation or qualification. The jury found a verdict for the plaintiffs, and I have received the annexed notice of appeal. The notes of the evidence taken on the trial are enclosed, and at the service of the appellants. I am not aware (until better instructed) that it devolves upon the Circuit Judge to copy voluminous notes of evidence, or furnish copies of letters or other documents adduced on the trial; copies of which have not, at any time, been furnished to the Judge below.”
    (Signed) “Wm. Rice.”
    “N. B. Since the rendition of this report, my attention has been called more specifically by defendant’s counsel, to the third ground of his appeal. In saying to the jury that it appeared to me that whether the defendants should be regarded in the light of common carriers, or merely or simply as forwarding agents, the gist of the liability would be the same, I regarded the plaintiff’s declaration as covering their obligation in either capacity, as no particular attention (as far as I remember,) was called to the pleadings in this point of view. The complaint, in this case, was not for damage in the actual carriage and safe delivery of the goods, after they were charged with their reception, so much as an act of non feasance, in not taking charge of the goods, supposed to be invited to their care for carriage.
    
    
      “ I am informed that the plaintiffs’ declaration charges the defendants simply as common carriers, and not in the capacity or under any contract, as mere receiving, forwarding, or transporting agents. It is due to the defendants to notice this, and it will be for the Court of Appeals to determine how far this is material. If the Railroad, being common carriers from Charleston to Columbia, and in the former course of their business inviting freight, deliverable at their Depot on the Neele, bad afterwards charged themselves with the receipt of freight from abroad, at the wharves, consigned to their care, and for their road, it is worthy of observation whether their Road and consequent responsibility, as common carriers, shoúld not be considered as theoretically, and in the eye of the law, extended to the wharves themselves. It is clear, that if they were lawfully charged with the reception of the goods in question, they were liable for their delivery to the consignees or the plaintiffs, regarded either as common carriers or receiving and transporting agents.”
    (Signed) “Wm. Rice.”
    The defendants appealed, and now moved for a new trial on the grounds:—
    1. That there was no evidence of delivery to, or acceptance of, the goods, by the defendants, as common carriers.
    2. That his Honor admitted evidence of usage to set up an express special undertaking on the part of the defendants, as forwarding agents.
    3. That his Honor charged the jury that there was no difference between the liability of the defendants as common carriers and as forwarding agents ;■ whereas, it is respectfully submitted that the liability is distinct in nature and degree.
    4. That his Honor charged the jury that the defendants had no power to limit their liability by proof of usage, but must do so by special notice to plaintiffs; whereas, it is submitted, that inasmuch as their liability was established by usage, — • usage was competent to limit their liability.
    
      Conner, for appellants.
    
      Mowry, contra.
   The opinion of the Court was delivered by

O’Neall, J.

This case is presented in such a way, that we have been put to great difficulty in ascertaining the facts upon which it turns, viz.: whether the goods ever were received by the Railroad as a common carrier ?

The Recorder has very fully stated his views of the law, but he has really favored us with no statement of the case. The latter we desire to be furnished with in as clear, and concise a manner, as possible. It seems to me, a report should contain a condensed statement of a case, so as to be intelligible to every one, both upon the facts and the law. I have never approved of the practice of sending up notes of testimony: I well remember the difficulty experienced by the Court of Appeals, before I was a member of it, indeed before I was a Judge, from the sending up the notes of evidence and grounds of appeal, as a report.

Looking into the declaration, the third and fourth counts may make cases of the following kind: the third, that the plaintiffs consigned goods to the defendant to be received by it and taken care of, and then to be carried on its road to Columbia: that it did not take care of, and safely convey the same: fourth, that the defendant undertook to take care of the said goods, and while it had the care that it so negligently kept them that they were injured.

It may be that under these counts the defendant may be charged as forwarding agent. If the proof justified the conclusion that the Company ever had possession of the goods, and the Recorder had placed the case upon the true ground, the liability of the Company in that particular and not as a carrier, the verdict might be sustained.

But in fact the Company never had the possession of the goods. They were consigned to it, but the vessel sprung a leak on her voyage, the cargo was injured, and a general average bond had to be signed before the goods were delivered to the consignees. The Company was not authorized to give such a bond; it, or rather its officer, Burdell, apprized the plaintiffs of that fact, and advised that Messrs. Heriot and Petit should be appointed their agent for that purpose. This was done. In the same letter the plaintiffs are told until the average bond is executed the goods are in the hands of Mr. Baker, the ship’s agent. The goods were stored on the wharf, not by the Company, but I suppose by the agent. It therefore never had the possession in fact; and if liable at all, it must be on a count for not receiving the goods after the execution of the average bond, and notice thereof, and then for not forwarding them to and by the Railroad.

Until the goods were in the possession of the Railroad Company, it is not liable as a common carrier. Certainly a very different rule applies to the liability of the Company, as a common carrier, and under an undertaking by it to receive and forward. In the former, when possession, actual or constructive, is shown, the Company is liable for all injuries and losses, except such as may arise from the act of God or the enemies of the country. In the latter it is liable for refusing to receive, unless it shows good cause for not receiving; and, after receiving, then, if it does not use all the care which a prudent man would about his own business, it is liable for any injury or loss which may arise. When the goods are received by the Company for carriage, it is liable as a common carrier.

The Recorder’s view therefore of the law was erroneous: and on the third ground the motion for a new trial is granted. The plaintiffs may add counts to their declaration charging the defendant for not receiving the goods, and also for not for_ warding them to and by its own Railroad.

Wardlaw, WithbRS, WhitNer, Glover, and Munro, JJ., concurred.

Motion granted.  