Central of Georgia Ry. Co. v. Butler Marble & Granite Co.
| Decision Date | 05 July 1910 |
| Docket Number | 2,050. |
| Citation | 68 S.E. 775,8 Ga.App. 1 |
| Parties | CENTRAL OF GEORGIA RY. CO. v. BUTLER MARBLE & GRANITE CO. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
The judgment must be amended by striking therefrom the sum returned as interest.
A custom imposing conditions as to the hours within which shipments will be received or forwarded by a carrier becomes immaterial if the conditions are waived and the shipment is in fact accepted by the carrier for the purpose of transportation and delivery to the consignee.
While a common carrier may make a contract of affreightment embracing an actual and bona fide agreement as to the value of the property accepted for transportation, a mere general limitation as to value, expressed in a bill of lading, which is clearly nothing more than an arbitrary preadjustment of the measure of damage in case of loss, will not, in any case exempt a carrier from liability for the true value of a shipment lost or destroyed by the negligence of the carrier.
Even where there is an attempt to limit liability in return for a lower rate of freight, the question as to whether there was an actual bona fide valuation of a shipment accepted by the carrier for transportation, or a mere effort arbitrarily to limit liability, is one of fact and for the jury. In the present case the jury were authorized to find that the valuation fixed in the bill of lading was not intended or understood to represent the mutual conclusion of the parties that the valuation mentioned had any reference to the real or actual value of the shipment. Where there is an arbitrary fixing of value before an inspection of the goods, and without any regard to their real worth, the assumed valuation may be treated as a mere attempt in advance to limit liability.
(b) The fact that a rate given to a shipper may be in violation of the rates fixed by the Interstate Commerce Commission does not affect the liability of the carrier to respond, or the right of a plaintiff to recover for the loss or destruction of property intrusted by him to a carrier for shipment though both the carrier and the shipper might be subject to criminal prosecution, and although the carrier might recover in an action brought for that purpose, the charges fixed by the commission.
So far as the ultimate effect upon the result of the trial is concerned, an objectionable feature in the pleadings can be as effectually removed by the charge of the court as by sustaining a demurrer thereto, and therefore, though the judgment upon the demurrer be erroneous, the error in such a case becomes harmless.
There is no merit in any of the exceptions to the charge of the court. The pertinent contentions of both parties were clearly and fairly presented, and the jury properly instructed in the law applicable to every phase of the case.
The assignments of error upon the admission of testimony do not require the granting of a new trial.
(a) The admission of testimony which was merely the conclusion of a witness could not in this instance have harmed the defendant, because there was ample legal evidence to sustain the inference of the witness.
(Additional Syllabus by Editorial Staff.)
The court takes judicial cognizance of the classification and rates of the railroad commission.
Error from City Court of Americus; C. R. Crisp, Judge.
Action by the Butler Marble & Granite Company against the Central of Georgia Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed, with directions.
The Butler Marble & Granite Company brought a suit against the Central of Georgia Railway Company to recover the actual value of certain shipments of monument marble consigned to four different customers. The petition alleged that the goods were delivered to the railway company and accepted for transportation, but were never delivered to the petitioners or to the consignees, and that the defendant claimed that the property was destroyed by fire while in the defendant's possession. The plaintiffs charged that the loss was due entirely to the carelessness and negligence of the defendant's employés, and that by the use of reasonable diligence on the part of the defendant the damage could have been avoided. They sued for $441.78 principal, interest at 7 per cent., and the penalty of $50 prescribed by law for failure to adjust the claim within the time allowed by law. The defendant demurred to paragraphs 3, 5, and 6 of the petition, contending that the act of 1906 (Acts 1906, p. 102) is unconstitutional, that the city court of Americus has no jurisdiction of the recovery of the penalty, and that the plaintiff cannot recover at all as to any shipment destined to points without the state of Georgia. The defendant in its answer denied that it was guilty of any negligence, and alleged that the fire originated off the premises of the defendant, and, without any negligence on its part, was communicated to the car. The defendant further pleaded that the plaintiff fixed the value of the marble which was destroyed at 20 cents per cubic foot, and thereby obtained a rate of freight much lower than the plaintiff would have otherwise obtained, and that the defendant agreed to accept this valuation and issued its bill of lading at that valuation, at the plaintiff's instance, and therefore that, if the plaintiff was entitled to recover anything, it could only recover the amount so fixed, to wit, $13, which the defendant averred it had tendered and continued to tender to the plaintiff. By way of replication to the answer of the defendant, the plaintiff, in an amendment to the petition, alleged: That neither the plaintiff nor its agents misrepresented the true value of the articles shipped, and that the agent and employés of the railroad company knew that 20 cents per cubic foot was not a reasonable valuation upon the property shipped; that the railroad company was not a victim of misrepresentation; that in fact the amount specified in the bill of lading was purely fictitious, and only represented an attempt on the part of the carrier to limit its liability to an arbitrary amount; that the loss was due to the negligence of the defendant, and that therefore the stipulation was not binding on the plaintiff; that the valuation stated was fixed without any reference to the real value of the goods, as was fully understood both by the carrier and the shipper. The amendment further set out that the defendant, instead of promptly shipping the goods to their destination, pulled the car which contained them "on the side track which runs along the Americus Compress Company"; that the compress was full of jute bagging and lint cotton, which are very combustible materials; that these conditions were fully known to the employés of the defendant company; that a portion, if not all, of the compress was on the right of way of the defendant, and the combustibles mentioned were in close proximity to the main inside tracks of the defendant, where engines were passing and repassing, and said combustibles were subject to be ignited at any time; that, notwithstanding these conditions, the defendant allowed the car containing the plaintiff's goods to be pulled in on this side track, on which the compress company loaded and unloaded its cotton, and to remain there over Sunday (there being no freight trains run on Sunday), where it was destroyed by fire. The trial judge overruled the demurrer as to so much of the petition as referred to the recovery of a statutory penalty, and, also, over the defendant's objections, allowed the amendment to which we have referred. The trial resulted in a verdict in favor of the plaintiff for $441.78, and $19 interest. The defendant excepts to the refusal of a new trial.
E. A. Hawkins, for plaintiff in error.
W. P. Wallis, for defendant in error.
RUSSELL, J. (after stating the facts as above).
1. We find no error in the judgment refusing a new trial, though the judgment must be amended. Under the rulings in Western & Atlantic R. Co. v. Brown, 102 Ga. 13, 29 S.E. 130, and in Central R. Co. v. Hall, 124 Ga 322, 52 S.E. 679, 4 L R. A. (N. S.) 898, 110 Am.St.Rep. 170, interest is not recoverable eo nomine. While the jury may consider the length of time the damages have been withheld, and all other circumstances connected with the...
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