Atlantic Coast Line R. Co. v. Henderson Elevator Co.

• Decision Date: 26 June 1916
• Docket Number: 6667.
• Citation: Atlantic Coast Line R. Co. v. Henderson Elevator Co., 18 Ga.App. 279, 88 S.E. 101 (Ga. App. 1916)
• Parties: ATLANTIC COAST LINE R. CO. v. HENDERSON ELEVATOR CO.
• Court: Georgia Court of Appeals

88 S.E. 101

18 Ga.App. 279

ATLANTIC COAST LINE R. CO. v. HENDERSON ELEVATOR CO.

No. 6667.

Court of Appeals of Georgia

June 26, 1916

Syllabus by the Court.

"If the consignee rejects the goods, the carrier's liability as such ceases, and he becomes liable as warehouseman. As such warehouseman he is chargeable with the duty of notifying the consignor of the consignee's refusal to accept the goods, and with the further duty of holding the same subject to the order of the consignor." Alabama Great So. R Co. v. McKenzie, 139 Ga. 410, 411, 412, 77 S.E. 647, 648 (45 L.R.A. [ N. S.] 18). See, also, American Sugar Co. v McGhee, 96 Ga. 27 (1) 34, 21 S.E. 383; Nashville etc., v. Dreyfuss-Weil Co., 150 Ky. 333, 150 S.W. 321.

"An exception to a refusal to allow a witness to answer a specified question presents no assignment of error with which this court can deal, when it does not appear what answer was expected. This is essential in order that the relevancy and materiality of the question may be passed upon." Scott v. Maddox, 113 Ga. 795 (4), 39 S.E. 500, 84 Am.St.Rep. 263. If it does not appear what the witness would have answered, it cannot be determined whether the exclusion of the answer was harmful. For this reason the first ground of the amendment to the motion for a new trial cannot be considered.

An assignment of error upon the ground that the verdict was contrary to a specified part of the charge of the court is in effect a complaint that the verdict was contrary to law, and such an exception "does not present for decision any legal question." Napier v. Burkett, 113 Ga 607, 38 S.E. 941; Wight v. Schmidt, 111 Ga. 858, 36 S.E. 937; Roberts v. Keeler, 111 Ga. 184, 186, 36 S.E. 617.

There is no merit in the third ground of the amendment to the motion for a new trial, as there was evidence from which the jury was authorized to infer a refusal on the part of the Chatham Mills Company (the order notify consignee) to pay the draft, including the admission to that effect in a paragraph of the plea, which, though afterwards stricken by the defendant, was formally tendered and admitted in evidence in behalf of the plaintiff. In the light of the entire charge and the testimony, this excerpt contains no reversible error.

The court did not err in charging the jury that "railroad companies as common carriers cannot excuse themselves for the loss of property, except it be by the act of God or public enemy." Conceding that the relation of carrier had ceased and that of a warehouseman had commenced, the court, in the charge as a whole, clearly differentiated the responsibility of a common carrier from that of a warehouseman.

The court erred in charging the jury that, if they should find that the defendant was liable, the verdict would be "We, the jury, find for the plaintiff in the sum of $392.90, with interest at the rate of seven per cent. per annum from February 9, 1911." The demand was unliquidated, since it was not fixed by agreement between the parties or by operation of law, and the value of the lost commodity was dependent upon the market price. The demand being unliquidated, the allowance of interest was within the discretion of the jury, and, while they may have increased the damages by an allowance of interest, the amount so allowed should have been...