Everett v. The Southern Express Co.

• Decision Date: 31 July 1872
• Parties: JAMES A. EVERETT, plaintiff in error. v. THE SOUTHERN EXPRESS COMPANY, defendant in error.*
• Court: Georgia Supreme Court

46 Ga. 303

JAMES A. EVERETT, plaintiff in error. v. THE SOUTHERN EXPRESS COMPANY, defendant in error.^*

Supreme Court of the State of Georgia

(Atlanta, July Term, 1872.)

Tax-affidavit. Cross-bill of exceptions. Liability of Express Company. Fraud. Before Judge Cole. Bibb Superior Court. October Term, 1871.

James A. Everett brought complaint against the Southern Express Company for $600, alleged to be the value of a diamond cluster pin delivered to said company at Fort Valley, *Georgia, on June 12th, 1863, for transportation to Macon, Georgia, which pin was never delivered at its point of destination. The record fails to disclose any plea as filed by the defendant.

It appeared from the evidence that a package said to contain a diamond pin worth $500, addressed to Miss Theodosia Everett, at the Female College, Macon, Georgia, was delivered to the agent of defendant in Fort Valley, Georgia, at the time set forth in the declaration, for transportation to Macon; that defendant received twenty-five cents freight; that said package was delivered to said agent by a small negro boy, ten or twelve years of age; that the pin was in a small paper box tied up with a string, and unsealed; that said negro boy had no knowledge of the contents of the box and delivered it unopened; that no information was given, at the time of the delivery to the defendant or its agent, of the contents of said paper box or package, and that no question was asked by the agent of the defendant as to its contents; that it was duly transmitted to Macon and delivered to Dr. Bonnell, the President of the Macon Female College, unopened; that Dr. Bonnell caused said box to be delivered to said Theodosia Everrett, to whom it was addressed, and, upon being opened, the breast pin was found to be wanting; that said Theodosia Everett was, at the time, a student in said college; that the box was received by Miss Everett in the same condition that Dr. Bonnell received it—unopened. The jury returned a verdict for plaintiff for the sum of $500, with interest from June 12th, 1863.

The defendant moved for a new trial upon the following, among other grounds:

1st. Because the Court erred in not charging the jury that delivery to Dr. Bonnell, under the proof, was a good delivery to Miss Everett. (Note. —The Court charged that delivery to Miss Everett, or to any one authorized to receive it, was a good delivery.)

2d. Because the verdict is contrary to the law and the evidence.

*3d. Because the court erred in charging the jury, "that if any agent or employee of the defendant stole the breast-pin while in the possession of the defendant, the defendant was liable, no matter under what circumstances it first received the box at Fort Valley."

4th. Because the Court erred in taking jurisdiction of the case and permitting the verdict for plaintiff, he not having filed the affidavit that taxes had been paid, and no proof having been submitted to the jury that the same were paid, although both the contract and the failure to deliver the package took place prior to June 1st, 1865.

No motion was made to dismiss plaintiff's case upon the ground last aforesaid.

The Court ordered a new trial upon the last ground, overruling the others, and plaintiff in error excepted and assigns said ruling as error.

W. K. DeGraffenreid; Clark & Goss, for plaintiff in error.

Nisbets & Jackson, for defendant.

McCAY, Judge.

Had the defendant moved to dismiss this case for want of the affidavit required by the Act of October 13th, 1870, the Court would doubtless have heard him favorably. But he has neglected to do this, and both the parties have treated the case as not coming within the Act. Shall the defendant, after taking all the chances of a verdict in his favor on the other issues, be permitted now to come in and have a new trial, because the plaintiff failed on the trial to prove the taxes paid? It is not to be expected that the Court shall, although he may interfere and take the defendant's case into his own hands. True, the tribunal trying the case must dismiss the case if the plaintiff shall have failed to show that all legal taxes have been paid. Doubtless the Court here would haveso done, had the motion been made....