J. H. Carter & Co v. Southern Ry. Co

• Decision Date: 14 November 1907
• Docket Number: (Nos. 463, 464.)
• Citation: 59 S.E. 209,3 Ga.App. 34
• Parties: J. H. CARTER & CO. v. SOUTHERN RY. CO. SOUTHERN RY. CO. v. J. H. CARTER & CO.
• Court: Georgia Court of Appeals

59 S.E. 209

3 Ga.App. 34

J. H. CARTER & CO.

v.SOUTHERN RY. CO.

SOUTHERN RY. CO.

v.J. H. CARTER & CO.

(Nos. 463, 464.)

Court of Appeals of Georgia.

Nov. 14, 1907.

1. Discovery—Production of Documents-Discretion or Court.

The refusal of the court to enter judgment by default against the plaintiff, for failure to produce documents required by notice served on behalf of the defendant, was not an abuse of discretion.

[Ed. Note.—For cases in point, see Cent. Dig vol. 16, Discovery, $ 139.]

2. Carriers—Carriage of Goods—Construction of Contract—Law of What State to Govern.

A contract of carriage, though made in a foreign state, is not necessarily governed, in matters of construction and effect, by the laws of that state, where the contract is to be partly performed in this state. This is especially true as to requirements which are to be wholly performed in this state.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 9, Carriers, § 220.]

3. Same—Contracts Limiting Liability.

A pass entitling a shipper to transportation without payment of fare is a good consideration to support a special contract made by him with the carrier, limiting the latter's common-law liability.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 9, Carriers, §§ 643, 644.]

4. Same—Actions for Loss or Injury—Presumptions and Burden of Proof.

If a carrier relies upon a special contract to vary his common-law liability, the burden is on him to show that any damage which occurred was within the exception, and also that it was not occasioned by his negligence.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 9, Carriers, §§ 722-725.]

6. Same—Notice of Damage—Waiver.

Where a contract of shipment requires the owner or shipper to give notice in writing of any damage to the shipment before it is unloaded, such stipulation may be waived. If the carrier's agent, without objection to the form of the notice, receives and acts upon an oral notice, a waiver of the requirement as to its being in writing results.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 9, Carriers, § 711.]

6. Same.

The court erred in directing a verdict. (Syllabus by the Court.)

Error from City Court of Baxley; J. H. Thomas, Judge.

Action by J. H. Carter & Co. against the Southern Railway Company. Judgment for defendant, and plaintiffs bring error, and defendant assigns a cross-bill. Judgment on the main bill reversed, on the cross-bill affirmed.

V. E. Padgett, for plaintiffs.

De Lacy & Bishop, Parker & Moore, and Lomar Rucker, for defendant.

RUSSELL, J. This case is before us on a main bill and a cross-bill of exceptions. J. H. Carter & Co. brought an action against the Southern Railway Company for damages to live stock while in transit. After all of the evidence had been submitted, the court, upon motion of defendant's counsel, directed a verdict in favor of the defendant. The plaintiffs moved for a new trial, and now except to the refusal of that motion. The defendant, having properly filed its exceptions pendente lite, excepts, by cross-bill, to the refusal of the court to grant an order peremptorily requiring the plaintiffs or their attorney to produce in court, to be used as evidence by the defendant, certain contracts between the parties, and assigns error upon the refusal of the court to grant a judgment as by default, in favor of the defendant upon the failure of plaintiffs and their at torney to produce said contract. If the de fendant's contention as set forth in the crossbill is well taken, it will be determinative of the whole case, and for that reason we will first pass upon the cross-bill.

It appears, from the record, that at the June term, 1906, of the city court of Baxley, the present case being then on trial, and a part of the evidence having been introduced, it was brought to the attention of the court that V. E. Padgett, Esq., plaintiffs' attorney, had in his possession, and in court, certain live stock contracts relating to the shipment which was the basis of the suit, to wit, a special live stock contract executed at Ft. Worth, Tex., February 10, 1906, between the Missouri, Kansas & Texas Railway Company and the Ft. Worth Horse & Mule Company, shippers, for the shipment of one car of 30 horses to J. H. Carter & Co., Baxley, Ga., upon certain terms and conditions in said contract set forth; also, a live stock contract executed at Shreveport, February 13, 1906, between the Vicksburg, Shreveport & Pacific Railway and J. H. Carter & Co., shippers, for the shipment of one car, said to contain 30 horses, from Shreveport to Vicksburg, consigned to J. H. Carter & Co., Baxley, Ga.; also, a live stock contract executed at Vicksburg. February 14, 1906, between the Vicksburg, Shreveport & Pacific Railway Company and J. H. Garter & Co., shippers, for transportation of one car, said to contain 30 head of horses, from Vicksburg to Meridian, consigned to J. H. Carter & Co. at Baxley, Ga. Upon the admission of plaintiffs' attorney that he had the said contracts in court, and upon his refusal to produce the same upon the verbal request of defendant's attorney, for the purpose of being used in evidence, the court required the attorney for plaintiffs to produce said contracts instanter, and they were so produced, upon the oral motion of defendant's attorney, who stated in his place that they were material to the issue. Defendant then tendered the contracts In evidence. Plaintiffs' counsel objected to the admission of the contracts in evidence, upon the ground that they were not authorized by the pleadings, whereupon the defendant amended its plea and set up said con-tracts. The trial of the case was at this point arrested, and the case was withdrawn from the jury and continued, upon plaintiffs' motion. The contracts were returned to plaintiffs' attorney, and were left in his custody. A few days thereafter the defendant's attorney gave the plaintiffs notice in writing to produce said contracts at the next succeeding term of court, and thereafter until the final disposition of the case, which notice was served upon the attorney for the plaintiffs on June 11, 1906. At the August term, 1906, the defendant's attorney called for a response to the notice to produce, and both an oral and a written response thereto was made. The three persons composing the partnership of J. H. Carter & Co. each testified that the papers in question were not in their custody, and that they knew nothing of them. Mr. Padgett, the attorney for the plaintiffs, stated that he considered the contracts not material to the contentions in the case, and that he had turned them over to his stenographer, who had destroyed them. He further testified: "When the court forced me to produce these papers at a former trial, I understood that he had no power to do so if I had not had them in the courtroom. And I made up my mind then, as I was being treated unfairly, if I ever got hold of them again that I would destroy them, and that the defendant should never get them in its possession again. They were destroyed in my office, not without my consent. I will say, further, that at the trial Mr. Luke White swore that these papers were not contracts under which this stock was shipped, but were given him as a mere pass to come there on, and therefore I did not think them material to the case, so had them destroyed."

The written response of the plaintiffs to the notice to produce was as follows: "Now comes the plaintiffs, in answer to a motion to produce, served upon them, and attach the shipping contract or bill of lading called for in the first paragraph of said motion. Further answering said notice, the plaintiffs say that the other two instruments therein mentioned and described are not in their possession, power, custody, or control, and plaintiffs further say that there was no such valid contract as referred to therein, and if such was in existence it is not now in their power, custody, or control. * * * Nor have they been since the service of said notice." On the hearing had on the notice to produce and the answer thereto, the defendant's attorney stated, in his place, that the papers called for, and which were not produced, were not in the custody, power, or control of the defendant, or of defendant's attorney, but they are now, or have been, in the power, possession, custody, or control of the plaintiffs or their attorney, and that they are material to the case, and moved the court for a judgment in favor of the defendant as by default. Upon this oral motion being overruled, and after the court had required the verbal response to the notice to produce, to which we have referred before, the defendant, by its attorneys, filed a written motion for a peremptory order requiring the plaintiffs or their attorney to produce instanter the contracts executed at Shreveport and Vicksburg, respectively, to be used as evidence, by the defendant in said case, and, upon a refusal or failure to so produce the same in response to said order, defendant moved the court to enter a judgment as by default against the plaintiffs and in favor of the defendant. The refusal of the court to grant this motion is the ruling to which exception is taken by the cross-bill of exceptions.

We might think that the court erred in refusing the peremptory order requiring the production of the contracts, under the circumstances disclosed by the record, and yet we might not be prepared to reverse a judgment either granting or refusing such a peremptory order. An important exercise of discretion on the part of the trial judge is necessary, and it is only when this discretion is abused that it should be controlled by the reviewing court. Of course, as we have already ruled in Central of Ga. Ry. Co. v. Lewis, 2 Ga. App.——, 58 S. E. 674, the court could not order a judgment by default until there had been a peremptory order of the court requiring a production of the contracts in...