Cent. Of Ga. Ry. Co v. Clark Milling Co, (No. 19680.)

• Decision Date: 27 June 1929
• Docket Number: (No. 19680.)
• Citation: 40 Ga.App. 113,149 S.E. 77
• Parties: CENTRAL OF GEORGIA RY. CO. v. CLARK MILLING CO.
• Court: Georgia Court of Appeals

40 Ga.App. 113

149 S.E. 77

CENTRAL OF GEORGIA RY. CO.

v.CLARK MILLING CO.

(No. 19680.)

Court of Appeals of Georgia, Division No. 1.

June 27, 1929.

Rehearing Denied July 10, 1929.

(Syllabus by the Court.)

Error from Superior Court, Richmond County; A. L. Franklin, Judge.

Suit by the Clark Milling Company against the Central of Georgia Railway Company. Judgment for plaintiff, defendant's certiorari was overruled by the superior court, and defendant brings error. Affirmed.

W. Inman Curry, of Augusta, for plaintiff in error.

Henry G. Howard and Wm. M. Howard, both of Augusta, for defendant in error.

LUKE, J. Clark Milling Company brought suit in a justice's court against the Central of Georgia Railway Company for a shortage in a shipment of corn, and the justice rendered judgment in favor of the plaintiff. The railway company appealed to a jury in the justice's court, and judgment was again rendered in favor of the plaintiff. The railway company then carried the case, by certiorari, to the superior court, and that court overruled the certiorari, and entered up judgment for the Clark Milling Company. This ruling the railway company assigns as error in its bill of exceptions to this court.

The plaintiff introduced in evidence a bill of lading issued by the Illinois Central Railway Company, at Decatur, 111., showing a shipment of 8S, 000 pounds of corn from Harrison, Ward & Company to the Clark Milling Company, Augusta, Ga., and proved that, after deducting natural shrinkage of one-fourth of one per cent., the weight at destination was 520 pounds short, which, at $1 a bushel, amounted to $9.29, the amount of the verdict rendered in favor of the plaintiff. The plaintiff admitted that the shipment was received at Augusta under the original seals that sealed the car at Decatur, Ill., and that upon examination of the car there was no evidence of any leakage. The evidence further shows that, while the car was being unloaded, and as soon as it was apparent that there was going to be a shortage, the representative of the Clark Milling Company called the representative of the Central of Georgia Railway Company to inspect the car. It is undisputed that 88, 000 pounds of corn were loaded in the car at Decatur, Ill.; that the Central of Georgia Railway Company delivered it to the consignee at Augusta, Ga., under the original seal; that there was no evidence of any cracks or holes in the car at Augusta; and that the shipment, when it arrived in Augusta, was 520 pounds short.

The question for our determination is not who caused the shortage, but whether the defendant is responsible to the plaintiff for the shortage. The railroad company introduced no evidence to show, and makes no contention, that the consignee had disposed of any of the corn before the representative of the defendant company was called to make an inspection. The outturn was actually weighed, as is shown by its being 520 pounds short.

The third paragraph of the plaintiff's petition alleges that "petitioner brings this action against the Central of Georgia Railway Company on its common law liability for failing to perform its part of the contract of carriage." There is no doubt about the plaintiff's right to sue the terminal carrier in this case. The Carmack Amendment (49 USCA § 20) in reference to suits against the initial carrier in interstate shipments in no way precludes the plaintiff from proceeding against the terminal carrier in this case. Central of Georgia R. Co. v. Yesbik, 146 Ga. 769, 92 S. E. 527. In its answer to the plaintiff's original petition, the defendant company admitted that the bill of lading called for 88, 000 pounds of corn, and that the defendant company was the last carrier of the shipment; and it made no contention in the trial that the full amount called for in the bill of lading was not shipped.

Under the facts of this case and the authorities hereinafter cited, three propositions of law are clearly applicable: (1) The plaintiff is not required to prove that the loss of the corn was actually occasioned by the fault of the defendant company. (2) A presumption arises that a shipment of corn was delivered to the defendant company without any deficiency in quantity, and that the lossoccurred while the corn was in its possession. (3) The duty is on the defendant to show that it did not cause the loss.

When the defendant company showed that the car was received under the original seal, and that it found no evidence of any leakage, this would certainly create a presumption that the defendant company did not occasion the loss; but a mere presumption is not sufficient to negative the presumption created by law. The defendant company should have produced some affirmative proof that it did not occasion the loss; and that proof must be sufficient to overcome, to the satisfaction of the jury, the presumption created under the law by the state of facts here proved. The defendant company might have proved that the loss was occasioned by the act of God or the public enemy, or by the shipper. The rule that the plaintiff is not...