Cent. Of Ga. Ry. Co v. Mcrphey

• Decision Date: 22 May 1901
• Citation: 113 Ga. 514,38 S.E. 970
• Court: Georgia Supreme Court
• Parties: CENTRAL OF GEORGIA RY. CO. v. MCRPHEY et al. (two cases).

38 S.E. 970

113 Ga. 514

CENTRAL OF GEORGIA RY. CO.

v.MCRPHEY et al. (two cases).

Supreme Court of Georgia.

May 22, 1901.

CARRIERS—LOSS OF FREIGHT—AGREED VALUATION—TRACING FREIGHT—NEW TRIAL.

1. A railway company, in its capacity as a common carrier, may, as the basis for fixing its charges and limiting the amount of its corresponding liability, lawfully make with a shipper a contract of affreightment, embracing an actual and bona fide agreement as to the value of the property to be transported; and, in such case, the latter, when loss, damage, or destruction occurs, will be bound by the "agreed valuation." But a mere general limitation as to value, expressed in a bill of lading, and amounting to no more than an "arbitrary preadjustment of the measure of damages, " will not, though the shipper assents in writing to the terms of the document, serve to exempt a negligent carrier from liability for the true value.

2. Under section 2318 of the Civil Code, a carrier failing to comply with the requirements of the next preceding section, as to tracing "freight" which has been lost, damaged, or destroyed, and giving information with respect thereto, becomes liable for the negligence of a connecting carrier.

3. Where both the parties to a case move for a new trial, the granting of either motion leaves the case pending in the lower court, and, while it so remains, a judgment overruling the other motion cannot be lawfully brought to the supreme court for review.

(Syllabus by the Court.)

Error from superior court, Pike county; E.,). Reagan, Judge.

Actions by Murphey & Hunt against the Central of Georgia Railway Company. Judgments for plaintiffs, and defendant brings error. Judgment in the first case affirmed; in the second, writ of error dismissed.

Robt. L. Berner, for plaintiff in error.

W. W. Lambdin, for defendants in error.

LUMPKIN, P. J. This action was founded on the provisions of sections 2317 and 2318 of the Civil Code, which' were codified from the act of October 16, 1891, commonly called the "Tracing Act." See Acts 1890-91, vol. 1, p. 156. In their petition the plaintiffs alleged facts bringing the case within the sections cited. The "freight" involved was a car load of grapes, consigned to Omaha, Neb., which the plaintiffs delivered to the defendant at Barnesville, in this state. The bill of lading embraced a special contract, was signed by the plaintiffs and an agent of the defendant, and contained a stipulation that the company was to carry the grapes to the destination indicated, "if on its road, or to deliver to another carrier on the route to said destination, subject, in either instance, to the conditions below, which are agreed to in consideration of the rate named." Among the "conditions below" was one that the "several lines [over which the grapes were to be transported] will not be held liable for injury to, or decay of, fruit, vegetables, or melons, or any perishable freight, caused [in divers specified ways], unless such decay or injury shall be the direct result of the carrier's negligence, and the shipper, owner, and consignee hereby assume the burden of proving such negligence." The last stipulation in the bill of lading was as follows: "In consideration of the reduced rates specified above, it is mutually agreed that the value of fruit shipments under this bill of lading shall be taken at not exceeding $500 per car load; vegetable, shipments, $200 per car load; melon shipments, $85 per car load; and the carrier shall in no eventbe liable for any greater sum in case of total loss or destruction; and in case of partial loss or destruction, or destruction of a quantity less than car load, the liability shall be proportionate." The evidence introduced at the trial showed that the grapes were in good condition when delivered to the, defendant; that they were not damaged on its line, but that, because of the negligence of some one or more of the other connecting carriers, they reached their destination in such a damaged condition that no more than $265.45 could be realized from a sale of them; and that, if they had arrived at Omaha undamaged, they might have brought as much as $700. The court, holding that under the stipulation last quoted from the bill of lading the maximum value of the grapes could in no event be placed at a sum exceeding $500, directed a verdict for the plaintiffs for $234.55, the difference between $500 and $265.45, the amount for which the grapes were sold. The plaintiffs made a motion for a new trial, the main and controlling ground of which was predicated upon alleged error in holding that, under the facts appearing, the defendant should not be held liable for the difference between $700, the highest proven value of the grapes, and the $265.45 which they brought. The defendant also moved for a new trial on various grounds. For a reason which will hereinafter appear, their contents need not be set forth. The court granted the plaintiffs' motion, and overruled that of the defendant. It sued out two bills of exceptions. In one, which for convenience we will designate as the "first, " it alleged error in granting the plaintiffs' motion. In the other, which for a like reason we will call the "second, " complaint was made of the court's refusal to sustain the defendant's motion. We will dispose of these bills of exceptions in the order indicated, and will accordingly first take up and deal with the decisive question which the defendant's exception to the granting of the plaintiffs' motion presents, and apply the ruling which we make thereon to the case in hand. The second bill of exceptions will then be in order for consideration.

1. There is in this country great contrariety of judicial opinion with respect to whether or not a common carrier can by special contract lawfully limit the amount of its liability for loss or damage which may be occasioned by its own negligence. In Railroad Co. v. Keener, 93 Ga. 808, 21 S. E. 287, this court held that where "the contract of shipment was not one limiting value by express agreement, but one in which there was no attempt to estimate value, " the carrier would not be exempt from the liability imposed by law for loss occasioned by its own negligence. It is not necessary to repeat here the reasoning of our present chief justice, who delivered the opinion in that case, and therein cited several authorities supporting the conclusion announced; but in view of the importance of the question, it may not be amiss to embrace the present opportunity of showing the extent to which those authorities go in sustaining the correctness of that conclusion. We also cite infra one very strong case from 31 Minn. 85, 16 N. W. 497, 47 Am. Rep. 781, not referred to in the opinion just mentioned, and indicate where numerous others on the same line and contra may be found.

After stating that the courts have differed widely in their views upon this question, Mr. Hutchinson says that "the majority of the authorities in the United States hold that it is contrary to public policy to permit the carrier to stipulate for exemption from the effects of the negligence of himself or his servants. In some of the states, on the other hand, express contracts to that effect are upheld." The author then proceeds as follows: "So, in reference to this particular question, it Is held by the majority of the courts that a contract limiting the liability of the carrier to a certain sum, in case of loss, —that is, contracts designed to secure a partial exemption from liability, —while valid and conclusive where the loss is caused by something other than the carrier's neglect, cannot be allowed to operate where the loss was occasioned by the negligence of himself or his servants, but that in such a...