J.B. Carr & Co. v. Southern Ry. Co.
| Decision Date | 25 June 1913 |
| Docket Number | 4,316. |
| Citation | 79 S.E. 41,12 Ga.App. 830 |
| Parties | J. B. CARR & CO. v. SOUTHERN RY. CO. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
A tort may consist in the violation of a public duty imposed by the general law upon all persons occupying the particular relation involved in the given transaction or res gestæ. If a contract imposes a legal duty upon a person, the neglect of that duty is a tort founded upon a contract. In such a case the liability arises out of the breach of duty incident to and created by the contract, but is only dependent upon the contract to the extent necessary to raise the duty. The tort consists in the breach of duty.
The petition sets forth an action ex delicto, and therefore the plaintiffs were not restricted to the recovery of such damages as were reasonably within the contemplation of the parties, but were entitled to recover for such damage as might be properly directly traceable to the defendant's neglect or failure to use due care in delivering the shipment which it had accepted for transportation.
Where in a suit brought to recover damages on account of the failure of a common carrier to deliver a shipment within a reasonable time, it appeared from the petition that the plaintiffs were contractors constructing a building under a time limit, and that the material constituting the delayed shipment was of an unusual kind, especially designed for the building then under construction, items of damages set forth in the petition, consisting of wages paid to a workman who was idle while waiting for the shipment, the expense of tracing the shipment, the forfeit which the contractors were compelled to pay by reason of the delay, and interest upon money which they were for the same reason compelled to borrow, were not subject to demurrer as being too remote for recovery.
The court properly sustained the demurrer to those items of damages set forth as "lost time" of the two partners composing the plaintiff firm upon the ground that such damages were too remote; it not appearing how or why it was necessary for the plaintiffs to lose the time, or (except as a conclusion of the pleader) that they did not or could not at that time have obtained any other contracts of employment of the value alleged, especially since the petition alleges that the plaintiffs were contractors, and in the absence of distinct allegations, showing a certainty of profits, it would be entirely speculative as to whether the contractors would have made or lost money upon the contract, even if they had had the opportunity of making another contract within the time alleged to have been lost.
Error from City Court of Atlanta; H. M. Reid, Judge.
Action by J. B. Carr & Co. against the Southern Railway Company. Judgment for defendant, and plaintiff brings error. Reversed.
Green Tilson & McKinney, of Atlanta, for plaintiff in error.
McDaniel & Black, of Atlanta, for defendant in error.
The plaintiffs, who are alleged to be a firm of contractors engaged in the construction of houses and other buildings filed a suit against the Southern Railway Company for damages for failure to deliver within a reasonable time a shipment which it had accepted for transportation. The petition sets out that plaintiffs were under contract to build a courthouse for Columbia county, Ark. They had the inside woodwork gotten out by the Woodward Lumber Company of Atlanta, Ga. The Woodward Lumber Company delivered a car of this inside finish to the defendant railway company at Atlanta, Ga., consigned to J. B. Carr & Co. at Magnolia, Ark. This finished building material was loaded in Illinois Central car No. 15,934, and was delivered to the railway company with direction, as appears from the bill of lading, to transport the same by way of the Queen & Crescent route at Meridian, Miss. It is alleged in the petition that instead of transporting the car load of material as directed in the bill of lading, and as it had contracted to do, the Southern Railway Company carried the car to Chattanooga, Tenn., and there delivered the car load of building material to the Queen & Crescent route marked "Empty," and that it was thus carried to Louisville, Ky. as an empty car, and lay there for two months, although two weeks was a reasonable time for the transportation of the car from Atlanta to Magnolia, Ark. The petition alleges that "said Southern Railway Company was negligent in the transmission of said car of builder's material from Atlanta, Ga., to Magnolia, Ark., in that said car was by said Southern Railway Company negligently marked 'Empty' and delivered to said Queen & Crescent route at Chattanooga, Tenn., to be carried to the yards of the Illinois Central Railroad at Louisville, Ky. to which place said car load of material was carried as an empty car, as above stated, and there remained until on or about the 30th of July, 1906, as above stated; said Southern Railway thus negligently diverting said car from the route directed in said bill of lading and thus causing an unusual, unnecessary, and unreasonable delay in the transmission of said car from Atlanta, Ga., to Magnolia, Ark." The plaintiffs made constant effort to trace the car, and the condition of the courthouse was such that the inside finish was needed by the middle June, 1906, and this material would have been at its destination, in the ordinary course, within this time, and yet the plaintiffs did not receive it until two months thereafter.
It is alleged that, because of the delay consequent upon the nondelivery of the car load of material, the plaintiffs were compelled to suspend work on the construction of the courthouse about the middle of June, 1906; that they were compelled to keep certain of their men employed upon the construction of the courthouse on wages; that by reason of said nondelivery they were compelled to pay E. A. Zobell $3 per day for 45 days, amounting to $135 during which time Zobell was idle by reason of the nondelivery of said car of material; that petitioner H. A. Carr, by reason of the nondelivery of said car of builder's material, lost two months of time while waiting at Magnolia, Ark., for said car which time was worth $100 per month or $200; that petitioner J. B. Carr lost two months of time while waiting at Magnolia, Ark., for the same reason, and his time was worth $200 per month or $400; that petitioners were compelled to expend $114.20 for the expenses of J. B. Carr on two trips from Magnolia, Ark., to Atlanta, Ga., and return, in their efforts to locate the car of builder's material; that the contract of the petitioners with said Columbia county, Ark., provided for a forfeit of $20 per day should petitioners fail to complete the courthouse by the 27th day of July, 1906; that by reason of the nondelivery of said car of material they were unable to complete the courthouse until the 29th day of September, 1906, when the petitioners, by compromise, settled the forfeit, due to their failure to complete the building on time, for $200; that by reason of the delay caused by the nondelivery of the car they were compelled to borrow $14,000 and pay interest thereon for two months, amounting to $186.66. The petitioners therefore place their damages at $1,235.86, with interest from the 15th day of August,...
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