C. D. Kenny Co v. Rco

• Decision Date: 07 March 1905
• Citation: 50 S.E. 132,122 Ga. 365
• Court: Georgia Supreme Court
• Parties: C. D. KENNY CO. v. ATLANTA & W. P. R.CO.

122 Ga. 365

50 S.E. 132

C. D. KENNY CO.

v.ATLANTA & W. P. R.CO.

Supreme Court of Georgia.

March 7, 1905.

CARRIERS—TRANSPORTATION OF FREIGHT—DELIVERY—LOSS OF GOODS.

1. Where a railroad company has transported a car load of goods, and notified the consignee of their arrival, the delivery is complete when the agent of the consignee verifies the goods in the car, and gives his receipt for the same.

2. Where the agent of a consignee removes most of the goods, but leaves some in the car on account of approaching night, and the car is broken open after having been closed and sealed by the agent of the railroad company, and some of the goods stolen therefrom, _ the railroad company, if liable at all, is only liable for gross neglect, as a gratuitous bailee.

(Syllabus by the Court.)

Error from Superior Court, Fulton County; J. H. Lumpkin, Judge.

Action by the C. D. Kenny Company against the Atlanta & West Point Railroad Company. Judgment for defendant, and plaintiff brings error. Affirmed.

Dodd, Newman & Dodd, for plaintiff in error.

Arthur Heyman, for defendant in error.

SIMMONS, C. J. The Kenny Company brought suit in a justice's court against the Atlanta & West Point Railroad Company for the value of seven bags of sugar. Upon the trial before the magistrate the parties agreed upon the following statement of facts: "On May 21, 1903, the Atlanta & West Point Railroad Company received at Atlanta, Ga., over its lines, car S. A. L. 17, 271, loaded with sugar consigned to C. D. Kenny Company, Atlanta, Ga., freight prepaid. A notice of the arrival of this car was sent by the defendant to plaintiff on May 23, 1903, a copy of which notice is hereto attached, which notice was duly received by the plaintiff on the 23d of May, 1903. May 24, 1903, was Sunday. The defendant placed the above car on delivery track No. 7 in its yard, near its end, which is not far from Central avenue. On May 25, 1903, plaintiff sent its drayman to defendant's depot for the purpose of having the contents of said car hauled to Its store on Whitehall street. The drayman went to defendant's office, secured the freight bill, and then went to Mr. V. B. White, delivery clerk of defendant, for the purpose of arranging to haul the sugar. Mr. V. B. White, defendant's delivery clerk, went to the car with the drayman, and opened the car and checked the contents, the same checking 100 barrels and 50 bags of sugar, as billed. The drayman then gave Mr. White, the delivery clerk, a receipt for the contents of said car, a copy of which receipt is hereto attached. The defendant always requires a consignee to give a receipt for the contents of a car before the consignee begins to unload a car. (It is the custom of the defendant to require a receipt for the billed contents of a car even in cases where it is impossible to check the contents of the car before the consignee is allowed to begin unloading the same.) Plaintiff's drayman thereupon began hauling the sugar from said car to the store of plaintiff, and continued to haul the sugar from the car through the day until about 5 o'clock p. m. of that day. At this time Mr. V. B. White, defendant's delivery clerk, checked up the contents of the ear, at which time he found 30 bags remaining In the car. Defendant's custom in connection with cars placed on defendant's delivery track is this: Every afternoon, when the hauling from such cars is over, the defendant has a man in its employ, who goes through its delivery yard and checks up the remaining contents in solid cars, and another employe of defendant closes the cars and seals the same. On the next morning defendant's watchman reported that he found the seals broken on said car a few minutes before 7 o'clock. About 7:30 a. m. of the same...