Hartwell Ry. Co. v. Kidd
| Decision Date | 19 March 1912 |
| Docket Number | 3,678. |
| Citation | 74 S.E. 310,10 Ga.App. 771 |
| Parties | HARTWELL RY. CO. v. KIDD. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
Where goods transported over the line of more than one carrier are damaged in transit, the holder of the bill of lading may sue the delivering carrier, either for the breach of its implied obligation to deliver promptly and safely, or upon its statutory liability as the last carrier which received the goods "as in good order." Where, in such a suit there is no allegation that the carrier received the goods as in good order, the action will be construed as being one based upon the common-law liability of the carrier.
An action against a carrier, based upon its common-law liability for damage to goods shipped, cannot by amendment be converted into a suit founded upon the statutory liability created by section 2752 of the Civil Code of 1910.
Although when a suit against a connecting carrier for damages to goods in transit is based upon the common-law liability of the carrier, there is a presumption that the goods were received in good order, this presumption may be rebutted; and when, in such a suit, it affirmatively appears that the goods were delivered to the plaintiff in the condition in which they were received by the carrier, a recovery is unauthorized.
Courts will not take judicial cognizance of the schedule of rates filed by a carrier with the Interstate Commerce Commission and published as required by the acts of Congress. A recovery as for an overcharge in freight upon an interstate shipment is not authorized, when there is no proof of the lawful rate which the carrier is allowed to demand.
The evidence was not sufficient to authorize a recovery as for an overcharge for feeding the live stock which were the subject-matter of the contract of carriage.
Error from Superior Court, Hart County; D. W. Meadow, Judge.
Action by C. I. Kidd against the Hartwell Railway Company. Judgment for plaintiff, and defendant brings error. Reversed.
James H. Skelton, for plaintiff in error.
W. L Hodges, for defendant in error.
1. When goods are delivered to a carrier, and direction given to ship to a designated point, the law implies a promise to transport at the lawful rate by the nearest practicable route; and this implied promise extends to every carrier who handles the shipment. Where goods transported over the line of more than one carrier are damaged in transit, the person entitled to recover the damages may sue upon the common-law liability arising upon the implied promise, or upon an express contract, if one was made, or, in this state, he may bring his action, under Civil Code 1910, § 2752, against the last carrier receiving the goods "as in good order." In the present case it is manifest that the suit as originally brought was not under the section of the Code as the last carrier receiving the goods "as in good order." There is no allegation that the defendant received the goods "as in good order." A general averment of negligence on the part of the defendant will not suffice to take the place of this essential allegation. No express contract is pleaded by the plaintiff, and it is clear that the suit is predicated upon the carrier's common-law liability. The case of Western & Atlantic R. Co. v. Exposition Cotton Mills, 81 Ga. 522 (2), 7 S.E. 916, 2 L.R.A. 102, is directly in point, as is also Central of Ga. Ry. Co. v. Jones, 7 Ga.App. 165, 66 S.E. 492.
2. Where goods conveyed over the line of more than one carrier are damaged in transit, and suit is brought against the last carrier, upon the common-law liability, the defendant is presumed to have received the shipment in good order; but this presumption may be rebutted by proof that the goods were delivered to the consignee in the same condition in which they were received by the defendant. But where the suit is brought upon the statutory liability, the carrier's receipt of the goods "as in good order," without exception, is conclusive upon the carrier. L. & N. R. Co. v. Burns, 9 Ga.App. 241, 70 S.E. 1112, and citations; Southern Ry. Co. v. Waters, 125 Ga. 520, 54 S.E. 620; Susong v. Ry. Co., 115 Ga. 361, 41 S.E. 566. Under this statute the carrier is estopped to deny liability, without reference to whether it occasioned the damage, when it either actually or constructively received the goods "as in good order." This is totally different from the common-law liability, under which the carrier is held responsible only for its own negligence. Hence it is that a suit brought against a carrier for its own negligence under its common-law liability cannot by amendment be converted into an action to enforce the statutory liability. Exposition Mills v. W. & A. R. Co., 83 Ga. 441, 10 S.E. 113; Kavanaugh v. Southern Ry. Co., 120 Ga. 62, 67, 47 S.E. 526, 1 Ann.Cas. 705. The court erred in allowing the amendment.
3. As the evidence demanded a finding that the defendant promptly delivered the car to the plaintiff, and that the stock were not injured while in its possession, a verdict in the plaintiff's favor was unauthorized, so far as the sum claimed as damages for injury to the stock was concerned.
4. Carriers engaged...
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