Atl. Coast Line R. Co v. Tifton Produce Co

• Decision Date: 02 December 1937
• Docket Number: No. 26368.,26368.
• Citation: 56 Ga.App. 776,194 S.E. 72
• Parties: ATLANTIC COAST LINE R. CO. v. TIFTON PRODUCE CO.
• Court: Georgia Court of Appeals

56 Ga.App. 776

194 S.E. 72

ATLANTIC COAST LINE R. CO.

v.TIFTON PRODUCE CO.

No. 26368.

Court of Appeals of Georgia, Division No. 1.

Dec. 2, 1937.

Syllabus by the Court.

1.Where the plaintiff on demurrer fails in his first action from the omission of the performance of a condition precedent when such condition exists, the judgment sustaining the general demurrer in the first is no bar to the second, where the condition precedent has been performed prior to the bringing of the second action, although both actions were brought to enforce the same right.For, in this case, the merits of the cause, as disclosed in the second petition, were not decided in the first.

2.Where an amendment was but a specification and amplification of the original contention as set out in the original pleading, there was no abuse of the discretion of the trial judge in overruling the motion to continue because of surprise.

3.The ruling on the evidence complained of in the second, third, fourth, and fifth grounds disclosed no reversible error.

4."The rule which places upon a common carrier the burden of showing the exercise of extraordinary diligence in the transportation of goods (Civ.Code 1910, § 2712) applies not only in cases of total loss, but also in case of partial loss by injury or damage to the goods from delay in transportation or delivery, and requires that extraordinary diligence shall be shown as to the time of completing this service."Southern Cotton-Oil Co. v. Louisville & Nashville Railroad Co., 15 Ga.App. 751, 84 S.E. 198.

5.The judge charged the jury in reference to the plaintiff in error's contention that the law "seemed to be that an inherent vice or natural deterioration is a good defense."(Italics ours.)We do not approve of this instruction, yet in this casewe do not think such a charge was reversible error.

6.The judge did not err in overruling the motion for a new trial.

Error from Superior Court, Tift County; R. Eve, Judge.

Action by the Tifton Produce Company against the Atlantic Coast Line Railroad Company.To review a judgment for plaintiff, defendant brings error.

Affirmed.

R. D. Smith, of Tifton, and Bennet & Branch, of Quitman, for plaintiff in error.

R. R. Forrester and C. A. Christian, both of Tifton, for defendant in error.

MacINTYRE, Judge.

In 1929, the Tifton Produce Company brought an action against the Atlantic Coast Line Railroad Company seeking to recover approximately $600 damages for injury to property alleged to have resulted from unreasonable delay in delivery at destination, the measure of the damages being the difference between the market price of the carload of watermelons shipped by the plaintiff from Trenton, Fla., to Buffalo, N. Y., if the same had reached Buffalo with reasonable dispatch, and the actual value of said melons when they did reach Buffalo, less a reasonable freight charge set forth in said petition.In other words, the plaintiff filed his suit before the payment of the freight on said car of melons.The defendant filed a general demurrer to the petition which was sustained and the petition in said case was dismissed on the authority of Wilensky v. Central of Georgia Railway Company, 136 Ga. 889, 72 S.E. 418, Ann.Cas.l912D, 271.In other words, the general demurrer was sustained because the freight charges had not been paid before the bringing of the suit.

At the March term, 1931, in. the superior court of Tift county, the Tifton Produce Company again brought its petition alleging substantially the same facts as alleged in the original petition, except they alleged that the freight charges had been paid prior to the bringing of the second suit.To this petition the Atlantic Coast Line Railroad Company filed a plea of res judicata alleging that the same case, upon substantially the same facts and the same allegations, had been brought in the superior court of Tift county in 1929, and had been dismissed on general demurrer, and that the judgment on the general demurrer dismissing the cause of action was a final adjudication of the case.A general demurrer was also filed asking that the case be dismissed upon the authority of the Wilensky Case above mentioned.The court, after considering the petition and the various amendments and the plea of res judicata and the demurrers, passed an order striking the plea of res judicata and overruling the demurrers to the petition as amended.Upon this order overruling the demurrers, the case was carried to the Court of Appeals of Georgia, and is reported in 50 Ga.App. 614, 179 S.E. 125, 126.It was held in 'that case that the court did not err in overruling the general demurrer, and in paragraph 5 of the decision (the same being a headnote decision)the Court of Appeals held as follows: "Under the authority of Turner v. Camp, 110 Ga. 631 (2), 36 S.E. 76, the judgment striking the defendant's plea of res judicata cannot be considered."Exceptions pendente lite had been filed, and, when the case came on for trial at the December term, 1936, of the superior court of Tift county, a verdict was rendered by the jury in favor of the plaintiff and against the defendant.A motion for new trial was made which, on April 9, 1937, was overruled by the court, and this case now comes to this court on the order overruling the motion for new trial.

1.As stated in the brief of counsel for plaintiff in error, the original suit was dismissed upon the authority of the case of Wilensky v. Central of Georgia Railway Company, 136 Ga. 889, 72 S.E. 418, Ann.Cas.l912D, 271, it being decided therein that: "A shipper, who is both consignor and consignee, cannot maintain against a carrier an action ex contractu for the value of goods consigned to the carrier for shipment and not delivered, when the carrier tenders the goods at destination in a damaged condition, but refuses to deliver them unless the shipper pays the usual freight charges, notwithstanding the damages to the goods amount to more than the freight charges, and the shipper demands that the damages to the shipment be offset against the freight bill; on the theory that the refusal to deliver under the circumstances is a breach of the contract of carriage."This case, therefore, as originally brought, was fatally defective for the reason that there was no allegation that the freight had been paid, which, under the allegations of the petition in the instant case, was a condition precedent to the maintenance of the suit.The payment of the freight subsequent to the filing of the first petition and prior to the filing of the second petition removed this defect.The Supreme Court in the case of the Atlantic Coast Line Railroad Company v. Tifton Produce Company, 179 Ga. 624, 176 S.E. 624, 96 A.L.R. 772, (Id, 50 Ga.App. 614, 179 S.E. 125), in considering the petition in this the second case, held that the petition set out a cause of action.In the first suit no cause of action, that is to say, no right to sue, was shown because there had been...