Baltimore & O.R. Co. v. Johnson-Battle Lumber Co.
Decision Date | 18 February 1928 |
Docket Number | 18167. |
Citation | 141 S.E. 678,37 Ga.App. 729 |
Parties | BALTIMORE & O. R. CO. v. JOHNSON-BATTLE LUMBER CO. |
Court | Georgia Court of Appeals |
Syllabus by the Court.
A person who has obtained a diversion of a shipment of goods during transportation by a carrier is not liable for a resulting additional freight charge, where, in ordering the diversion, he was acting as agent for another, and the carrier must have known of this fact.
Error from Superior Court, Colquitt County; W. E. Thomas, Judge.
Suit by the Baltimore & Ohio Railroad Company against the Johnson-Battle Lumber Company. Judgment for defendant, and plaintiff brings error. Affirmed.
Baltimore & Ohio Railroad Company sued Johnson-Battle Lumber Company for a balance of freight alleged to be due on a shipment of lumber which originated at Dublin, Ga., and which, after certain diversions, was delivered at Langdon, D. C. The trial upon an agreed statement of facts before the judge without a jury resulted in favor of the defendant, the plaintiff's motion for a new trial was overruled, and the movant excepted. The agreed statement was as follows:
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Waldo De Loache, of Moultrie, and Otey B. Mitchell, of Atlanta, for plaintiff in error.
P. Q. Bryan, of Moultrie, for defendant in error.
Counsel on each side have submitted a number of authorities as supporting their respective contentions. No case, however, has been brought to our attention which seems to be directly in point, and we will decide the case before us upon its own particular facts, in the light of what we deem to be general and unquestioned principles of law.
The right to divert a shipment of goods which are being transported by a common carrier is in the true owner, whether he be the consignor or the consignee, and the right may be exercised although the goods have passed into the hands of a connecting carrier.
While it is true that in the absence of knowledge, either actual or constructive, to the contrary, the consignee may be presumed to be the owner, the ownership may be in the consignor, and where this fact appears he is the proper person to direct the shipment. Saunders Bros. v. Payne, 29 Ga.App. 615 (5), 116 S.E. 349; 10 C.J. p. 82.
The facts of this case show that Grogg Lumber Company, the consignor, was the owner and was treated as such by the carrier; otherwise it would not have diverted the shipment in the first instance from the original destination and consignee on the order of that company. If the right to divert the shipment was not in the Bethesda Lumber Company the original consignee, presumably it was not in Johnson-Battle Lumber Company after the diversion by the shipper to that company. Title to property in a person, once proved or admitted, is presumed to continue until the contrary appears. Haas & Howell v. Godby, 33 Ga.App. 218, 125 S.E. 897. If the title did not pass from the consignor to the consignee at the origin of the shipment, presumptively it was not conveyed to a third person to whom the shipment was diverted, merely in virtue of such diversion. Then, so far as appeared, Johnson-Battle Lumber Company occupied the same status as did Bethesda Lumber Company, having no right within itself to divert the shipment. It was neither a nominal consignor nor a nominal consignee, and the carrier would not have diverted the shipment on the order of a stranger. While the record discloses that this company, in making the...
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