D. H. Overmyer Co. v. Nelson-Brantley Glass Co., NELSON-BRANTLEY
| Decision Date | 25 April 1969 |
| Docket Number | NELSON-BRANTLEY,44356,Nos. 44355,No. 1,s. 44355,1 |
| Citation | 168 S.E.2d 176,119 Ga.App. 599 |
| Parties | , 6 UCC Rep.Serv. 723 D. H. OVERMYER COMPANY, Inc. v.GLASS COMPANY, Inc., et al.GLASS COMPANY, Inc., et al. v. D. H. OVERMYER COMPANY, Inc |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. Where the evidence establishes that the damage to the goods being shipped was direct result of improper loading, the 'shipper's weight, load and count' bill of lading shall operate as a complete defense for the carrier as to such damage.
2. Under the circumstances of this case a disputed claim existed. Hence, the trial judge did not err in directing a verdict for the defendant on the plaintiff's claim for attorneys' fees.
Nelson-Brantley Glass Company filed a claim against D. H. Overmyer Company, Inc. (hereinafter referred to as 'shipper'), and Alabama/Georgia Express (hereinafter referred to as 'carrier'), for damages resulting from a load of plate glass being broken while being shipped to the plaintiff. The complaint alleged that the defendants were negligent in improperly packing the glass on the express truck and in transporting the glass without ascertaining that it was packed in a proper manner. The complaint also alleged that by their refusal, without any reason or justification, to pay the plaintiff's claim the defendants caused the plaintiff unnecessary trouble and expense for which the plaintiff was entitled to recover an additional $1,000 arising from such stubborn litigiousness.
Upon the trial of the case the trial judge directed a verdict for the plaintiff against the defendant shipper and in favor of the defendant carrier for the principal damages, but directed a verdict against the plaintiff in favor of the defendants on their claim of attorneys' fees. In Case 44355 the defendant shipper appeals from the direction of the verdict against it; while in Case 44356 the plaintiff cross-appeals as to the direction of the verdict in favor of the shipper on the plaintiff's claim for attorneys' fees.
Smith, Cohen, Ringel, Kohler, Martin & Lowe, H. A. Stephens, Jr., Atlanta, for appellants.
Spearman & Bynum, Wm. Lewis Spearman, Atlanta, for appellee.
1. The evidence disclosed that: the plaintiff engaged the defendant carrier to transport the glass; the defendant shipper was employed to load and pack the glass into the defendant carrier's truck; there was testimony that the glass was improperly packed in the truck causing it to break. One of the defendant carrier's employers, Mr. Reese, testified that he checked the truck after it was loaded and stated, 'I always look and check is the load going to shift or is it loaded right, in other words'; as far as he could determine it was loaded properly. Another of the carrier's employees, Mr. Davis, testified that he looked in the truck and knew how it was packed and from his inspection it appeared to him that it would ride all right. Mr. Striplin, a witness for the plaintiff, testified that: he inspected the truck when it arrived; in answer to whether in his opinion the truck was loaded properly he replied 'that's very poor ingenuity on somebody's part to put that bracing against glass, I think it's ridiculous.'
There were exhibits introduced which showed that the cases of glass had been braced with an 'A' frame positioned directly into the cases of glass.
The bill of lading stated that 'Shipper load and consignee unload.' Plaintiff's counsel contends under the terms of the bill of lading the carrier is relieved from liability because of the provisions of Code Ann. § 109A-7-301(4) which states:
The actual effect of the 'shipper's weight, load and count' bill of lading is in a state of confusion. There is an extensive discussion of the conflict which exists in both the state and federal courts contained in the opinion of Hershel Radio Co. v. Pa. R.R. Co., 344 Mich. 75, 80, 73 N.W.2d 319, 321, which reads: 'However, it is plaintiff's contention that despite its own negligence and the 'Shipper's Load and Count' designation the carrier may be, and in this case is, liable if it knew of or had the means of knowing of the improper loading of the car. * * * there is support for the rule as advanced by plaintiffs. See generally 13 C.J.S. Carriers § 67 b; 9 Am.Jur. Carriers, § 730; Duncan v. Great Northern R Co., 17 N.D. 610, 118 N.W. 826, 19 L.R.A., N.S., 952; Illinois Central R. Co. v. Rogers & Thomas, 162 Ky. 535, 172 S.W. 948, L.R.A.1915C, 1220. For those who adhere to this rule it is apparently considered an unwritten exception to the statute regarding 'Shipper's Load and Count' contracts as set forth in 49 U.S.C.A. § 101, supra. See Perkel v. Pennsylvania R. Co., 148 Misc. 284, 265 N.Y.S. 597.
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...cases cited; Buffalo Cab Co. v. Williams, 126 Ga.App. 522, 524, 191 S.E.2d 317 (1972). See also D. H. Overmyer Co. v. Nelson-Brantley Glass Co., 119 Ga.App. 559, 605(2), 168 S.E.2d 176 (1969), where the plaintiff obtained a directed verdict on liability and actual damages but the court held......
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...claim for expenses of litigation, including reasonable attorney fees would be retained for trial. See D. H. Overmyer Co. v. Nelson-Brantley Glass Co., 119 Ga.App. 599(2), 168 S.E.2d 176. Judgment affirmed in part; reversed in SMITH and BIRDSONG, JJ., concur. ...
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...evidence in dispute, but the status of the underlying law was in doubt until resolved by the court. D. H. Overmyer Co. v. Nelson-Brantley Glass Co., Inc., 119 Ga.App. 599, 168 S.E.2d 176. The case here is the modern counterpart of Western & Atlantic RR Co. v. Smith, 15 Ga.App. 289, 82 S.E. ......