Ga. v. Blish Milling Co

Decision Date11 September 1914
Docket Number(No. 5514.)
Citation82 S.E. 784,16 Ga.App. 142
CourtGeorgia Court of Appeals
PartiesGEORGIA, F. & A. RY. CO. v. BLISH MILLING CO.

(Syllabus by the Court.)

Error from City Court of Bainbridge County; H. B. Spooner, Judge.

Action by the Blish Milling Company against the Georgia, Florida & Alabama Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed, with direction.

On May. 13, 1910, the Blish Milling Company, of Seymour, Ind., shipped from that place to Bainbridge, Ga., a car load of flour, consigned to itself, with order to notify Draper-Garrett Grocery Company. The bill of lading, acknowledging receipt of the flour at Seymour, Ind., was issued by the Baltimore & Ohio Southwestern Railway Company. The shipper's sight draft upon the Draper-Garrett Grocery Company, for $1,109.89, covering the price of the flour and the additional sum of $10 as a carrying charge of 5 cents per barrel for 200 barrels for one mouth, was attached to the bill of lading, with proper indorsement, and sent to a bank in Bainbridge for collection. The flour was loaded in car "A. G. S. No. 8455, " and from that car was transferred en route by the Central of Georgia Railway Company, at Atlanta, Ga., and placed in car "K. C, F. S. & M. No. 27286, " in which it reached Bainbridge over the line of the Georgia, Florida & Alabama Railway Company, in accordance with routing, and the last-named railway company, without requiring payment of the draft and surrender of the bill of lading, delivered the car of flour to the Draper-Garrett Grocery Company immediately on its arrival, June 2, 1910, by placing it on a side track owned and controlled by the grocery company. The bill of lading and draft were not called for, and were finally returned to the Blish Milling Company. The grocery company, on delivery of the car, opened it and unloaded a part of its contents, but discovered that some of the flour was wet, and thereupon reloaded the part that had been unloaded, and turned the car back to the railway company. The railway company retook possession of the car and unloaded it, and in a few days sold, as perishable property, a part of the flour al-leged to be damaged, and on December 23, 1910, sold the remainder. On June 3, 1910, after the grocery company had turned the flour back to the railway company, B. C. Prince, traffic manager of the Georgia, Florida & Alabama Railway Company, telegraphed to the Blish Milling Company, as follows: "Flour order notify Draper-Garrett Grocery Company refused account damage. Hold at your risk and expense. Advise disposition." On the next day the milling company replied by telegraphing to Prince: "Sending our representative there. What is nature of damage?" To this Prince replied: "Flour transferred in route. Slight damage by water, apparently rough handling. When will your representative reach Bainbridge?" The Blish Milling Company replied that their man would be there that night or the next day. On June 7th (after the milling company's representative had reached Bainbridge, and conferred with the grocery company) the milling company sent a final telegram, saying: "We will make claim against railroad for entire contents of car at invoice price. Must refuse shipment as we cannot handle." It appears from the evidence of Mr. Draper that the price of flour declined after his order was given and before the flour reached Bainbridge. There is conflict in the evidence as to a tender of the flour by the railway company to the milling company's representative. According to some of the testimony, about 18 barrels of the flour had been sold by the railway company before the alleged tender was made, and therefore it was not within the power of the carrier to tender the shipment in its entirety. The contract of shipment contained a provision that "claims for loss, damage, or delay must be made in writing to the carrier at the point of delivery or at the point of origin within four months after the delivery of the property, or, in case of failure to make delivery then within four months after a reasonable time for delivery has elapsed. Unless claims are so made, the carrier shall not be liable." So far as appears from the record, no claim was riled by the shipper.

After the dismissal of a former suit, which appears to have been filed on February 14, 1911, the Blish Milling Company filed the present suit in trover, alleging a conversion of the shipment by the carrier, and, the plaintiff having elected to take a money verdict for the value of the property, the jury rendered a verdict in its favor for $1,084.50. It was admitted by the parties that the freight was never paid; that the draft should have been for $1,099.89; and that the freight upon the car from Seymour, Ind., to Bainbridge, Ga., amounted to $124.21. On the trial a demurrer to the petition was overruled. Exceptions pendente lite to this ruling, and exception to the judgment refusing a new trial, are brought up by the bill of exceptions.

W. H. Krause and T. S. Hawes, both of Bainbridge, for plaintiff in error.

Erle M. Donalson and R, G. Hartsfield, both of Bainbridge, for defendant in error.

RUSSELL, C. J. (after stating the facts as above). The demurrer includes four grounds of objection to the petition, which we shall consider seriatim.

1. In the first ground, complaint is made that the city court of Bainbridge "is without jurisdiction of the subject-matter of the case in question; the cause of action being a contract of bailment entered into by and between the Blish Milling Company and the Baltimore & Ohio Southwestern Railway Company." It is contended that the defendant was not directly connected with the contract, and that the action should have been brought against the initial carrier, or that, if the present defendant was suable at all, the remedy against it was an action for damages, under the act of Congress regulating' interstate transportation, known as the Hepburn Act. Even though it be true that the shipment is controlled by the Hepburn Act (Act June 29, 1906, c. 3591, 34 Stat. 584 [U. S. Comp. St. Supp. 1911, p. 1284]), we fail to see that the city court of Bainbridge is, by that fact, deprived of jurisdiction.

We think the ruling upon this ground of the demurrer is controlled by the decision of this court in Southern Railway Co. v. Morrison, 8 Ga. App. 647, 70 S. E. 91. In that case Morrison brought suit in trover against the Southern Railway Company to recover certain cotton alleged to have been delivered to the carrier in Monroe county for shipment to Macon, in Bibb county, and upon his own testimony was only able to show that he had delivered the cotton to an agent of the defendant in Monroe county, and, at the time of the motion for nonsuit, he had not shown that the cotton had not been shipped away from Monroe county, and therefore he had failed to prove the venue, because he alleged an affirmative tort, and failed to show that the actual conversion did not take place in Bibb, or some other county. After Morrison had shown that the cotton was delivered to the carrier at a point in Monroe county, and not in Macon, thus, as stated by Judge Powell, "showing the loss, but not necessarily the conversion, the defendant came in and showed that the cotton had never been shipped out of Monroe county." And this court held that an action of trover for a conversion may be maintained against a carrier in the county where the conversion took place, and that, "as the defendant's own testimony affirmatively disclosed that the presumed conversion took place at the point of shipment and not elsewhere, it consequently disclosed that, if the plaintiff had a cause of action, he had one that lay within the venue where the suit was pending." The fact that in the Hep-burn act there is no reference to proceedings in trover suggests that Congress, not having dealt with the remedy provided by an action in trover, had left to each state the free use of that remedy at its option. However, in the present case, if we look beyond its technical denomination, the scope and effect of the action is nothing more than that of an action for damages against the delivering carrier, suggested by learned counsel for the plaintiff in error as the plaintiff's appropriate remedy. If an action for damages can be maintained against a delivering carrier, without the necessity of proving that the delivering carrier itself caused the damage (Way v. South. Ry. Co., 132 Ga. 677, 64 S. E. 1066), and an action of trover can be maintained upon a constructive conversion evidenced only by the failure to deliver, it would seem clear under the ruling in Morrison's Case, supra, as well as under the ruling of the Supreme Court of the United States in North Penn. R. Co. v. Commercial Nat. Bank, below, that trover may be maintained against the last carrier, when it is shown that the last carrier, actually converted the property. In such a case, clearly the venue would be where the conversion occurred.

2. In the second ground of the demurrer it is insisted that "the petition sets up no cause of action against the defendant." The principles stated in the second headnote are well settled. The bill of lading, according to the uncontradicted testimony, was not presented or demanded, and the draft had not been paid, at the time the defendant turned the car of flour over to the Draper-Garrett Grocery Company, and, under the terms of the contract, the carrier had agreed to deliver the shipment only to the Blish Milling Company, at Bainbridge, Ga., or to its order, as might appear by the indorsement on the bill of lading.

"If for any reason the seller, at the time of the shipment and delivery of the goods to the common carrier, takes a bill of lading to his own order, and attaches thereto a draft for the purchase money, he thereby expresses his intention to retain the title until the draft is paid, or accepted and secured; and, where this method of shipment is adopted, the carrier becomes the agent of...

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