Baltimore & O. R. Co v. Montgomery & Co

• Decision Date: 22 November 1916
• Docket Number: (No. 7658.)
• Citation: 90 S.E. 740,19 Ga.App. 29
• Parties: BALTIMORE & O. R. CO. v. MONTGOMERY & CO.
• Court: Georgia Court of Appeals

(19 Ga.App. 29)

90 S.E. 740

BALTIMORE & O. R. CO.

v.MONTGOMERY & CO.

(No. 7658.)

Court of Appeals of Georgia.

Nov. 22, 1916.

(Syllabus by the Court.)

Error from Municipal Court of Atlanta.

Action by Montgomery & Co. against the Baltimore & Ohio Railroad Company. Judgment for plaintiffs, and defendant brings error. Affirmed.

King & Spalding, of Atlanta, for plaintiff in error.

Moore & Pomeroy. of Atlanta, for defendants in error.

BROYLES, J. While in a suit for damages to an interstate shipment handled by more than one carrier the provisions of what is known as the "Carmack amendment" (Act June 29, 1906, 34 Statutes at Large, 593, c. 3591) to the act of Congress known as the "Hepburn Act" (the act of February 4, 1887, 24 Stat, at Large, 379, c. 104 [U. S. Comp. St 1913, § 8592, pars. 11, 12]) do not require that the suit shall in all cases be brought against the initial carrier (Georgia, Florida & Alabama Ry. Co. v. Blish Milling Co., 241 U. S. 190, 36 Sup. Ct 541, 60 L. Ed. 948; Central of Georgia Ry. Co. v. Waxelbaum, 18 Ga. App. 489, 89 S. E. 635), yet, under the facts of the instant case, the defendant railroad company would not be lia-ble to the plaintiffs, if it was not the initial carrier of the shipment; and the sole question for determination is: Was the defendant the initial carrier? There is no dispute as to the facts in the case. The Branch Mountain Orchard Company, the shipper, delivered to the Baltimore & Ohio Railroad Company, the initial carrier, at Moorefield, W. Va., on August 22, 1915, a carload of peaches in Baltimore & Ohio refrigerator car No. 14773; and the railroad company on the same day issued to the shipper a bill of lading, in which the destination was given as Richmond, Va., and the consignees Montgomery & Co. at Richmond, Va. This car was delivered by the Baltimore & Ohio Railroad Company to the Richmond, Fredericksburg & Potomac Railroad Company at Potomac Yard, Va., and arrived at Richmond, Va., August 24, 1915, where the contents of the car were inspected by the consignees, Montgomery & Co., and found to be in good condition. Upon the same date this car was delivered to the Atlantic Coast Line Railroad Company at Richmond, Va., and was reshipped to E. B. Stewart & Co., Atlanta, Georgia, upon the original bill of lading issued by the defendant. The bill of lading issued by the Baltimore & Ohio Railroad Company was the only bill of lading issued during the transit of the shipment. It was undisputed that Montgomery & Co. were the lawful holders of this bill of lading. The federal Interstate Commerce Act, as amended, expressly provides that the initial carrier shall issue a receipt or bill of lading, and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property, caused by it or by any common carrier, railroad, or transportation company to which such property may be delivered, or over whose lines such property may pass. In interstate shipments the consignee is the presumptive owner, and has the right to direct a change in the destination of the shipment. Hutchinson on Carriers, § 735. When the defendant, the initial carrier, issued the bill of lading in which Montgomery & Co. were named as the consignees, it was with the knowledge that the law gave this consignee the right to change the destination, and with the knowledge that the law put upon it (the initial carrier) the burden of paying for damage to the...