Aero Mayflower Transit Co. v. Harbin

• Decision Date: 13 April 1972
• Docket Number: No. 3,No. 46932,46932,3
• Citation: 190 S.E.2d 91,126 Ga.App. 72
• Parties: AERO MAYFLOWER TRANSIT COMPANY, Inc. v. David P. HARBIN et al
• Court: Georgia Court of Appeals

Page 91

190 S.E.2d 91

126 Ga.App. 72

AERO MAYFLOWER TRANSIT COMPANY, Inc. v. David P. HARBIN et al.

No. 46932.

Court of Appeals of Georgia, Division No. 3.

April 13, 1972.

Lipshutz, Macey, Zusmann & Sikes, Charles C. Pritchard, H. William Cohen, Atlanta, for appellant.

King & Spalding, A. Felton Jenkins, Jr., Atlanta, for appellees.

Syllabus Opinion by the Court

EBERHARDT, Presiding Judge.

Mr. and Mrs. David Harbin were living in Connecticut, where he was employed by IBM. Mr. Harbin was offered employment in Dallas, Texas, by CCC Computer Corp., which he accepted, a consideration of employment being that CCC would arrange and pay for the moving of his household goods and furniture and a Mustang automobile from Connecticut to Texas. An official of CCC called Mayflower's representative in Dallas and arranged a conference (between himself, Harbin and the Mayflower representative) at which the arrangements were made and CCC gave written authorization to Mayflower to effect the moving of the furniture, etc., the cost to be billed to CCC.

At the other end of the line a representative of Mayflower called at the Harbin home, inspected the items to be shipped, and prepared an estimate of the cost. Dates for the pick-up and delivery were settled. When the goods were packed and ready for shipment a bill of lading was prepared showing the items shipped from the Harbins in Connecticut to themselves in Dallas, with costs to be billed to CCC.

The goods were delivered July 1, 1969 but the truck driver failed to send promptly the delivery documents to Mayflower and because of this there was no billing of CCC until October 13, 1969, and by that time CCC was having financial reverses which made payment of the bill impossible. Bankruptcy followed.

Mayflower then, through a collection agency, demanded payment and now seeks recovery of the shipping charges. Defensive pleadings were filed, depositions taken, and the cases came on for trial before a judge without a jury. At the conclusion of the trial judgment was entered for the defendant and plaintiff appeals. Held:

1. Under § 223 of the Motor Carrier Act (49 U.S.C. § 323), unless the consignee is an agent, having no beneficial interest in the property, he is genrally responsible for the payment of all lawful shipping charges. This has been applied to situations which, in many respects, are very like to that here. See Pittsburg, Cincinnati, Chicago & St. Louis R. Co. v. Fink, 250 U.S. 577, 40 S.Ct. 27, 63 L.Ed. 1151; National Van Lines v. Herbert, 81 S.D. 633, 140 N.W.2d 36; Aero Mayflower Transit Co. v. Rae, 203 Misc. 801, 118 N.Y.S.2d 895; Aero Mayflower Transit Co. v. Hankey (La.App.), 148 So.2d 465.

Our own cases have held that the carrier may collect the charges from the shipper or from the consignee, absent a special contract under which the carrier agrees to relieve one or the other. Central of Ga. R. Co. v. Willingham & Sons, 8 Ga.App. 817, 70 S.E. 199; Seaboard Air Line R. Co. v. Montgomery, 28 Ga.App. 639, 112 S.E. 652; Central of Georgia R. Co. v. Brown, 42 Ga.App. 278, 155 S.E. 787. And a mere agreement that the goods are to be shipped 'collect' does not amount to a special contract relieving the shipper.

Based upon the statute and these cases we would feel bound to hold that the Harbins are liable to Mayflower here, but there is a difference appearing which leads us to affirm the...