Dubose v. Ga. R.R. And Banking Co.

• Decision Date: 31 July 1873
• Citation: 50 Ga. 304
• Court: Georgia Supreme Court
• Parties: ARNOLD & DUBOSE, plaintiffs in error. v. GEORGIA RAILROAD AND BANKING COMPANY, defendant in error.

50 Ga. 304

ARNOLD & DUBOSE, plaintiffs in error. v. GEORGIA RAILROAD AND BANKING COMPANY, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1873.)

Railroads. Venue. Charter. Freight. Contracts. Before Judge Andrews. Wilkes Superior Court. May Term, 1873.

*Arnold & DuBose brought complaint against the Georgia Railroad and Banking Company for $2,362 50, overcharge in freight on three million one hundred and fifty thousand pounds of cotton, shipped on the cars of the defendant for a distance of seventy-five miles. The defendant pleaded the general issue and to the jurisdiction of Wilkes Superior Court.

The evidence made the following case: The amount of cotton was shipped, as alleged, at Washington, Wilkes county, to be conveyed by the defendant to Augusta, Richmond county, a distance of seventy-five miles. The freight charged by the defendant was forty-five cents per hundred pounds. T..ht had been paid in Augusta. The agent of defendant at Washington had no instructions to receive freight or to refuse it. Had it been offered he would have received it. The former charge was thirty-three cents per one hundred pounds; from the year 1865 to the present time, during which period plaintiff's cotton was shipped, the charge has been at the rate of forty-five cents per one hundred pounds. The charge by wagon, before the railroad was built, was fifty cents per hundred pounds. The plaintiffs, before the commencement of suit, demanded from the defendants seven and one-half cents on each one hundred pounds of cotton shipped, as being an overcharge and illegal, under its charter. Payment was refused. It was agreed that the case should go to the jury on both pleas, subject to the charge of the Court.

The Court charged that under the facts proved, the Superior Court of Wilkes county had no jurisdiction of the case; that if said Court did have jurisdiction, there was nothing in the charter of the defendant prohibiting the charges of freight as made.

The jury returned a verdict for the defendant.

The plaintiffs except to the aforesaid charge of the Court, both as to jurisdiction and as to the construction of the charter of the defendant.

R. Toombs, for plaintiffs in error.

*W. M & M. P. Reese; W. H. Hull; E. H. Pottle; Hillyer & Brother, for defendant.

TRIPPE, Judge.

1. Section 3329 of the Revised Code, as amended by the Act of March 4th, 1869, is as follows: "All railroad companies shall be liable to be sued in any county in which the cause of action originated, by any one whose person or property has been injured by such railroad company, their officers, agents or employees, for the purpose of recovering damages for such injury, and also on all contracts made or to be performed in the county where the suit is brought: " New Code, section 3329. The section, before it was amended by the Act of 1869, has, after the word "employees, " the following words, "in or by the running of the cars." These words were stricken out by the Act of 1869, and also the words, "made or" were inserted by that Act. Previous to its passage no action could be brought for damages in the county where the damage occurred, unless it was caused "by the running of the cars, " and no action on a contract unless the contract was to be performed in the county where suit was brought. Of course this statement has no reference to the right of every plaintiff to sue the company in the county where its chief office of business is located. Before the statutory change as to the venue of suits against railroads, the action was forced to be brought in the county where that office was. The Legislature, seeing the burden that this rule imposed on the citizen, compelling him to go fifty or one hundred or two hundred miles to assert his claim, commenced, many years ago, to give further rights to plaintiffs in such cases. Several Acts have been passed, and at last it was enacted that the action might be brought where the injury was done by the running of the cars, or where the contract was to be performed. To add still farther to the facilities of claimants living on a long line of road, and doubtless to cover, asnearly as possible, all cases of that sort, the Act of 1869, by striking out the words, "in and by the running *of the cars, " intended to include all kinds of injury to person and property done by railroad companies, their agentsofficers or employees, and by adding the words, "or made, " to give a right of action on all contracts, where they were made or were to be performed. In thus looking at these efforts on the part of the Legislature, we do not think, at least a majority of this Court do not, that it would be within the spirit and meaning of the Act of 1869 to hold in such cases as this, and, in fact, in all cases founded on or growing out of the contract and resting directly upon the contract, that the action could not be brought where such contract was made. We think the true intent and meaning of the Act of 1869, when construed in the light of the old law, the mischief and the remedy, would sustain this action in the county of Wilkes, in so far as the question of jurisdiction is involved.

2. The next question is, whether the following words in the charter of the Georgia Railroad, to-wit: "that the charge of transportation or conveyance shall not exceed fifty cents per hundred pounds on heavy articles, and ten cents per cubic foot on articles of measurement, for every one hundred miles, " impose a pro rata limitation on distances less than one hundred miles. For myself, I do not hesitate to state that this question is one of some difficulty, though a majority of the Court have no hesitancy on their minds. The argument on this point was able and ingenious, but it is unnecessary to review it here. There are two other provisions in the same section, making direct reference to the one quoted, which determines the matter, at least so far as to justify the decision pronounced. The first of these is, "that the said company may, when they see fit, rent or farm out all, or any part, of their said exclusive right of transportation or conveyance of persons on the railroad, or railroads, with the privilege to any individual or individuals, or other company, and for such term as may be agreed upon, subject to the rates above mentioned."Now it is pertinent to remark that the charter granted...