Cent. R.R. & Banking Co v. Hasselkus

• Citation: 91 Ga. 382,17 S.E. 838
• Parties: CENTRAL RAILROAD & BANKING CO. v. HASSELKUS et al.
• Decision Date: 24 April 1893
• Court: Supreme Court of Georgia

17 S.E. 838

91 Ga. 382

CENTRAL RAILROAD & BANKING CO.

v.HASSELKUS et al.

Supreme Court of Georgia.

April 24, 1893.

Carriers —Fruit Shipments —Injuries prom Delay—Liability beyond Terminus —Limiting Liability—Burden op Proof—Pleadings.

1. According to Central R. Co. v. Dwight Manuf'g Co., 75 Ga. COO, and Falvey v. Railroad Co., 76 Ga. 597, the valid contracts embraced in the bills of lading involved in the present case were through contracts for shipment from Griffin, Ga., to New York and Philadelphia, and the company with whom they were made was responsible for performance both to and beyond the terminus of its own road. The first of these authorities cuts off the company from availing itself of any limitations or restrictions of its general liability ex-pressed in the bills of lading, the shipper not having expressly assented thereto, and there being no evidence to prove his assent, save the mere acceptance by him of the bills of lading.

2. A stipulation in a bill of lading which exempts the carrier from liability unless notice is given of the damage within a specified time is one of the matters forbidden by section 2008 of the Code, and is not effectual without proof of assent thereto by the shipper.

3. When goods, though perishable, or liable to rapidly deteriorate from internal causes, are damaged while in the hands of the carrier, the burden of proof is upon him to show either that he was free from negligence, or that, notwithstanding his negligence, the damage occurred without his fault; that is, that his negligence did not contribute to the damage.

4. The bills of lading being silent as to the time within which delivery was to be made at New York and Philadelphia, the law presumes it was to be done in a reasonable time, and parol evidence is not admissible to negative this presumption by showing that a definite and specific time was agreed upon either expressly or by implication.

5. The declaration alleging an undertaking to deliver in a specific time, but none to deliver in a reasonable time, evidence of what would be a reasonable time was inadmissible, and no recovery could be had under the declaration as it stands for failure to deliver in a reasonable time. If the necessary allegation is supplied by amendment, all the relevant facts and circumstances touching the particular shipment, as well as touching that class of shipments generally, may be shown to ascertain what length of time would be reasonable.

(Syllabus by the Court.)

Error from superior court, Spalding county; J. S. Boynton, Judge.

Action by Hasselkus & Stewart against the Central Railroad & Banking Company for damages to fruit by delay in transportation. Plaintiffs had judgment, and defendant brings error. Reversed.

Hall & Hammond, for plaintiff in error.

Stewart & Daniel, for defendants in error.

SIMMONS, J. 1. The action was for damages to fruit from delay in transportation. The plaintiffs recovered, and the defendant moved for a new trial, which was refused, and it excepted. The shipments were made from Griffin, Ga., on the defendant's line of railroad, under bills of lading issued by the defendant, which were headed "Central Railroad and Banking Company and Connections. Through Bill of Lading, " and which stated that the fruit was received in apparent good order and condition, consigned to certain named parties in New York and Philadel phia, to be transported by the defendant and connecting carriers, via Atlanta, to the station or wharf nearest to its ultimate destination. The defendant at the same time took from the shippers a guaranty of the freight, charges for the entire route. It was contended that the defendant was not liable, because there was no delay or damage on its own line, which ended at Atlanta, and because as to any delay or damage beyond its line it was released by the contracts of shipment, the bills of lading stipulating that "the liability of each carrier as to goods destined beyond its own route shall be terminated by proper delivery of them to the next succeeding carrier, " and 'in case of loss, detriment, or damage, or delay in the transportation thereof, imposing any liability hereunder, the carrier in whose actual custody they were at the time of such loss, damage, detriment, or delay, shall alone be responsible therefor." The bills of lading were signed only by the agent of the defendant, and it does not appear that these stipulations were expressly assented to on the part of the shippers. The Code (section 2068) declares that "a common carrier cannot limit his legal liability by any notice given, either by publication or by entry on receipts given or tickets sold. He may make an express contract, and will then be governed thereby." According to the decisions of this court in Central R. Co. v. Dwight Manuf'g Co., 75 Ga. 609, and Falvey v. Railroad Co., 76 Ga. 597, when a common carrier gives the shipper a bill of lading which states that the goods received are to be transported by itself and connecting carriers to a certain point beyond the terminus of its line, and there delivered to a particular person, and the shipper at the same time pays such carrier, or agrees with it to pay, the freight charges for the whole route, this constitutes a contract for through shipment, for the performance of which, beyond as well as to the terminus of its own line, the contracting carrier is responsible; and, under the first of these authorities, additional stipulations in the bill of lading by which the carrier seeks to confine its liability to its own line, and which are not expressly assented to by the shipper, do not change the nature of the contract, and are inoperative as limitations of the carrier's liability Mere acceptance of the bill of lading does not establish the shipper's assent to stipulations of this kind. See, further, as to the character of the contract, Railway Co. v. Pritchard, 77 Ga.412, 1 S. E. Rep. 261, and Atlanta & W. P. R. Co. v. Texas Grate Co., 81 Ga. 610, 9 S. E. Rep. 600. A different contract is not shown by evidence that the carrier was not interested in the rate contracted for as to the part of the route beyond its own terminus, but received only its regular " local" rate from the connecting carrier. It follows that the court below did not err in declining to give in charge to the jury the requests set out in the 3d, 4th, and 5th grounds of the motion for a new trial.

2. Another stipulation under which the defendant claimed exemption from lia-bility was the following: "All claims for damage to goods must be made, and the nature and extent thereof fully disclosed, in the presence of the agent of the carrier having the...