East Tenn. v. & G. Ry. Co

• Decision Date: 07 May 1890
• Citation: 85 Ga. 497,11 S.E. 809
• Court: Georgia Supreme Court
• Parties: East Tennessee, V . & G. Ry. Co. v. Johnson et al.

11 S.E. 809

85 Ga. 497

East Tennessee, V . & G. Ry. Co.

v.Johnson et al.

Supreme Court of Georgia.

May 7, 1890.

Connecting Carriers—Delat—Measure of Damages.

1. Where the initial carrier in its bill of lading issued to plaintiffs undertook to transport goods to their destination without any mention of connecting lines, in an action for damages caused by delay against the last carrier, which was not a party to the contract, it is error to instruct that if defendant was one of the connecting lines over which the goods were shipped it would be liable for unreasonable delay, whether such delay occurred on its own line or not.

2. In such action the measure of damages is the difference between the value of the goods had they arrived in time and their value when they did arrive, with interest, less the freight; ana it is error to charge that plaintiffs are entitled to recover the price of the goods, with the profits for which they had been sold.

Error from city court, Floyd county; Meyerhardt, Judge.

C. A. Thorn well and Bacon & Rutherford, for plaintiffs in error.

Keece & Denney, for defendants in error.

Simmons, J. The plaintiffs purchased a car-load of acid phosphate in Charleston, designed and directed by them to be shipped to Skellie's, a point in Gordon county, Ga., reached by the defendant's railway. The purchase was made in March, 1889, to be paid for in the succeeding fall, and the plaintiffs' notes were given for the amount of thepurchasemon-ey, |300, due in the fall of 1889. The goods were delivered for shipment to the South Carolina Railroad Company, and in the bill of lading that company undertook to ship them to Skellie's station. There was no mention of theEast Tennessee, Virginia & Georgia Railway Company in the bill of lading, or of any other railroad company except the South Carolina Railroad Company. The defendant company was not a party to the contract, and had no connection with the same until the delivery of the goods to it in Atlanta. The plaintiffs had sold the phosphates to planters, to be delivered on arrival by certain dates. This car-load of phosphate did not arrive at Skellie's for more than a month after the shipment from Charleston, and when the same did arrive the season during which the phosphate could be used by the planters to whom it had been sold by the plaintiffs had passed by. When the phosphate arrived at Skellie's station it was in a different car from that in which it had been shipped from Charleston, and which was specified in the bill of lading. The plaintiffs had prepaid the freight on the car. They refused to receive the goods when tendered to them at Skellie's station. The price at which they had contracted to sell the goods to the planters, to be paid for in the fall, upon the gathering of the crops, would have given them a profit on the phosphate. There was no evidence as to the time when these goods were delivered to the defendant company. One of the plaintiffs testified that he thought the agent of the company at Rome had said to him that the company had received the goods in Atlanta on April 4th. The agent, however, expressly denies this, and stated that he did not know when they were received by the company, and that he so stated to one of the plaintiffs. Upon this denial no issue was joined, and it was doubtless accepted as true on the trial. The plaintiffs sued the defendant company, and under the charge of the court recovered against it the original cost of the phosphate, the freight which had been prepaid from Charleston to Skellie's, and also the amount of profit at which the plaintiffs had contracted to sell the phosphate to the planters, to be paid for in the fall on the gathering of the crops. The defendant made a motion for a new trial, which was overruled by the court, and it excepted.

1. We think the court erred, under the facts of the case, in charging the jury that, if the defendant was one of the connecting lines over which the goods were to be shipped from Charleston, it would be liable for unreasonable delay of goods shipped over its road, no matter whether the delay occurred on its line or not. There was no privity or contractual relation shown between the initial railroad and the defendant company, but, on the other hand, the declaration alleges, and the proof shows, an express contract made by Johnson & Sheehan with the South Carolina Railroad to ship the goods from Charleston, S. C, to Skellie's station, in Georgia. Under these facts, the rule laid down by this court in the case of Shea v. Express Co., 38 Ga. 519, and in the case of Cohen v. Same, 45 Ga. 148, should apply. In these cases it was held that, "when a common carrier receives and receipts for goods to be transported beyond the terminus of he undertakes to transport the goods to the point of destination either by himself or competent agents, and if the goods are lost beyond the terminus of his own line he will be liable therefor." " When an express contract was made between the plaintiff and the Adams Express Company for thetranspor-tation of goods from New York to Macon, Ga., and the goods were lost when in the possession of the Southern Express Company, as the agents of the former company to complete the transportation,...