Central of Georgia Ry. Co. v. Manchester Mfg. Co.

• Decision Date: 15 June 1909
• Docket Number: 1,265.
• Citation: 64 S.E. 1128,6 Ga.App. 254
• Parties: CENTRAL OF GEORGIA RY. CO. v. MANCHESTER MFG. CO.
• Court: Georgia Court of Appeals

64 S.E. 1128

6 Ga.App. 254

CENTRAL OF GEORGIA RY. CO. v. MANCHESTER MFG. CO.

No. 1,265.

Court of Appeals of Georgia

June 15, 1909

Syllabus by the Court.

The evidence authorized the finding in favor of the plaintiff in the lower court, and the amount of the verdict is not excessive.

[Ed Note.-For other cases, see Carriers, Cent. Dig. §§ 588-592 607; Dec. Dig. § 134. ^[*]]

In the absence of a request in writing, it is not reversible error for the court to omit to charge upon the burden of proof. In the absence of a request for more specific instructions, it was not error to instruct the jury, upon the subject of the burden of proof, that "it is essential for the plaintiff in this case, in order for the plaintiff to recover, that the evidence shall show, by a preponderance thereof, that the plaintiff is entitled to recover," although the court may not thereafter have specified or particularized each of the special points at issue as to which the burden of proof devolved upon the plaintiff.

[Ed Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 627, 628, 630-641, 660, 662-676; Dec. Dig. § 216 ^[*]; Trial, Cent. Dig. §§ 628-641; Dec Dig. § 256. ^[*]]

There being evidence that the cotton which was the basis of the present suit was delivered to the carrier, and that said cotton was never delivered by the carrier to the consignee, it was not error to instruct the jury that a common carrier is bound to exercise extraordinary diligence, and that in case of loss the presumption of law is against a common carrier, and no excuse avails the common carrier, unless it is occasioned by the act of God or the public enemies of the state.

[Ed. Note.-For other cases, see Carriers, Dec. Dig. § 137. (FN*)]

Error from City Court of Macon; Robt. Hodges, Judge.

Action by the Manchester Manufacturing Company against the Central of Georgia Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed, with damages for delay.

Wimberly & Jordan, for plaintiff in error.

John P. Ross, for defendant in error.

RUSSELL J.

The plaintiff in error excepts to the judgment overruling its motion for new trial. In addition to the usual assignment that the verdict was contrary to the evidence and without evidence to support it, exception is taken to the instructions to the jury contained in the charge of the court which are stated below. The suit was brought by the Manchester Manufacturing Company to recover the value of eight bales of cotton which it alleged had been delivered to the defendant as a common carrier for transportation from Forsyth to Macon, Ga., and which the carrier failed to deliver. It was not denied that the cotton was the property of the consignee, the plaintiff. The weights and value of the cotton were not disputed, and this disposes of the complaint contained in the original motion that the verdict is excessive. So far as the facts are concerned, the only questions to be determined are whether the plaintiff in error received the cotton and whether thereafter it was delivered to the defendant in error.

As we view the record, there is practically no dispute that the cotton alleged to have been lost was received by the carrier company. The date of the bill of lading introduced in evidence, which acknowledged receipt by the carrier of 50 bales of cotton from B. F. Hill, consigned to "order notify Manchester Mills, Macon, Ga.," the cotton being marked "MAN," together with the oral testimony showing that only 42 bales of this lot of cotton were shipped in a separate car, and that the 8 remaining bales were shipped in a different car, establishes clearly that the carrier received the 8 bales of cotton identified by the witnesses by marks and weights. The real issue in the case was whether or not the carrier had delivered the cotton to the Manchester Mills. It is undisputed that it is the custom of the Central of Georgia Railway Company to effect delivery to the Manchester Manufacturing Company by means of a side track and the delivery of shipments consigned to the cotton factory at its own warehouse on that side track. Three witnesses testified that the 8 bales of cotton in question were never delivered to the manufacturing company at its warehouse. We think this would have authorized the finding on the part of the jury that the carrier did not deliver the cotton to the consignee, even if there had been evidence directly in conflict, if the jury judged these witnesses to be credible. To rebut this testimony the railway company proved that the 8 bales of cotton were taken from the car in which they reached Macon and deposited in another car, and directions were given that this car should be carried to the manufacturing company's side track. There was, however, no evidence on the part of any employé of the carrier that the car was transferred to the usual place of delivery at the warehouse of the Manchester Manufacturing Company while it contained the cotton; in other words, no evidence that the cotton was ever carried to the side track of the manufacturing company.

The circumstance that the 8 bales of cotton were reloaded into car I. C. 24703 on Saturday, September 29th, and that switching instructions in regard to it were given, and that the same car was used on October 2d, by the Manchester Manufacturing Company, which loaded it with yarn consigned to Philadelphia, would show that the car was switched from the depot to the side...