Green v. Southern Express Co.

• Citation: 45 Ga. 305
• Parties: BENJAMIN E. GREEN, plaintiff in error. v. SOUTHERN EXPRESS COMPANY, defendant in error.
• Decision Date: 31 January 1872
• Court: Georgia Supreme Court

45 Ga. 305

BENJAMIN E. GREEN, plaintiff in error. v. SOUTHERN EXPRESS COMPANY, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1872.)

Common-carriers. Before Judge Parrott. Whitfield Superior Court. June, 1871.

Benjamin E. Green, "for the use of himself and the Dalton City Company, a corporation, and for the use of Duff Green, " sued said company, as a common-carrier, for the loss of a trunk and its contents, to-wit: "many articles of great value, consisting of title papers to valuable tracts of land, promissory notes, and many other valuable papers; and also goods, wares and merchandize of great value, to-wit; of the value of $20,000." No bill of particulars was attached to the petition. The defendant pleaded the general issue; that plaintiff valued his trunk at $100 when delivered for shipment, and that they had tendered him $100 and interest since the date of the receipt. This tendered sum was deposited in Court.

The main body of the evidence is in the opinion. Green testified that before sending the trunk to the Express office in Montgomery, Alabama, he went to the office and told one, whom he supposed to be agent, that he had a very valuable trunk to be shipped to Dalton, but was short of funds, and could not ship it unless he would charge for it by weight only, and that he agreed to do so. That, about twohours later he took the trunk there, and that person was gone; but, without mentioning the contract, he delivered the *trunk to another agent, who took it, weighed it and handed him the exhibited receipt. In that receipt the value was put at $100, but plaintiff says he did not give any value, nor knew it was put in the receipt, till the trunk was lost.

The person who received the trunk and gave the receipt, swore that he did not put in the $100 at his own instance, but, while he did not remember the case, knew, from the rules and uniform custom of defendant, that he asked the value, and would not have inserted $100 had not plaintiff given that as the value. He explained the company's arrangement for taking care of very valuable freights, and gave an account of a smash up, etc., in which part of the less valuable freight was lost en route from Montgomery, and he supposed said trunk was of that lot. He said, had he known it was very valuable he would have saved it, as he did his other very valuable freight. What became of the trunk he did not know.

The Court charged the jury that the first verbal arrangement as to shipping, under the facts stated, was merged in the contract made by accepting the receipt.

The jury found for plaintiff $250 and costs. Plaintiff's counsel moved for a new trial upon the grounds that said charge was wrong and said verdict wrong. A new trial was refused, and that is assigned as error.

D. A. Walker, by W. H. Dabney, for plaintiff in error.

McCutchen & Shumate, for defendant.

MONTGOMERY, Judge.

1. It appears, by the receipt of the defendants in this case, produced by the plaintiff on the trial, that the latter shipped, at Montgomery, Alabama, a trunk, to be transported to Dalton, Georgia, by the defendants as common carriers. The receipt bears date November 20, 1865, and states the value of the trunk and contents at $100. The evidence *shows that the trunk was packed in July, 1863, with title deeds and other papers and jewelry. The trunk was carried by a third party, after being packed, first to Pendleton, South Carolina, and then to Montgomery, Alabama. It remained in the latter place some eighteen months, before it was shipped by the plaintiff. It is true that the plaintiff testifies to very heavy damages, both direct and consequential. It is to be observed.however, that there is a great want of definite upon this point, and, in some cases, a Want of knowledge of the value of the articles lost. He estimates the loss of jewelry at $500, without being able to name any article lost but two gold pencils, one of which he values at $100, without being able to say "whether they were pure gold or alloy." Conceding it to have been pure gold, it must have been a most extraordinary pencil, both in size and weight, to have been worth that sum, or anything like it. And yet the witness says "it was a common-sized pencil." Again, he says the loss to the Dalton City Company, of which he was...