Lamb v. McHan
| Decision Date | 09 September 1915 |
| Docket Number | 5971. |
| Citation | 86 S.E. 252,17 Ga.App. 5 |
| Parties | LAMB v. MCHAN. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
Construing the petition as a whole, and in the absence of a demurrer complaining of uncertainty as to the nature of the action, it is held that the action was one ex delicto, and not ex contractu.
Since the bill of lading attached to the plaintiff's petition shows that it was signed by the carrier's agent alone and not by the shipper, the plaintiff was not bound by any stipulation therein by which it was sought to limit the liability of the carrier.
The measure of damages was the value of the property at destination, less freight charges to that point.
The verdict was sufficiently supported by the evidence.
Additional Syllabus by Editorial Staff.
An action founded upon the failure of a person to perform a legal duty imposed upon him by contract is an "action ex delicto."
Error from City Court of Waycross; John C. McDonald, Judge.
Action by W. F. McHan against E. T. Lamb, receiver. Judgment for plaintiff, and defendant brings error. Affirmed.
Bolling Whitfield, of Brunswick, and J. L. Sweat, of Waycross, for plaintiff in error.
Parker & Walker, A. B. Spence, and E. R. Smith, all of Waycross, for defendant in error.
1. An action founded upon the failure of a person to perform a legal duty imposed upon him by contract is an action ex delicto. City & Suburban Railway v. Brauss, 70 Ga 368; Turner v. Western & Atlantic Railroad, 69 Ga. 827. Chappell v. Western Railway of Alabama, 8 Ga.App. 787-788 (2), 70 S.E. 208; Brooke v. Nashville, Chattanooga & St. Louis Railway, 5 Ga.App. 253, 62 S.E. 1002. The petition in the case under consideration clearly indicates that, notwithstanding the contract is attached thereto, to show the relationship between the parties out of which arose the damages, the suit is an action ex delicto, and, in the absence of any demurrer complaining of uncertainty as to the nature of the action, arising from obscurity in the petition, the petition will be held to set forth sufficiently a cause of action ex delicto. The fact that suit was instituted for the value of a shipment of apples at destination, less the freight to that point, conclusively shows that the intention of the plaintiff was to recover for the damage to the shipment, and not to recover damages for breach of the contract.
2. The receipt given by the initial carrier for the car load of apples accepted for an intrastate shipment from Elijay, Ga., to Waycross, Ga., was not signed by the shipper, nor does it appear that the various stipulations referred to therein and set out at length on the back of the receipt were expressly accepted or agreed to by him; and hence these stipulations, in so far as it is attempted thereby to modify the general rights of the shipper under the law or limit the liability of the carrier, were not binding upon him. Southern Express Co. v. Briggs, 1 Ga.App. 294, 57 S.E. 1066. The court, therefore, did not err in declining the request to charge the jury that in case of loss or damage the liability of the carrier should be computed upon the basis of the value of the shipment at the time and place of shipment, and that since the plaintiff had not sought to recover under that stipulation in the bill of lading, or upon that measure of damages, or that basis of value, but, on the contrary, had sought to recover the value of the property at destination, less freight charges, he would not be entitled to recover, and a verdict should be returned in favor of the defendant.
3. The court did not err in declining the request to charge that since the plaintiff had specifically alleged his damages to be due to unreasonable delay by the defendant in the transportation of the apples by it from Atlanta, Ga., to Waycross, Ga., if the evidence showed that the defendant received the shipment at a certain hour on a certain Saturday from the initial carrier at its connection in Atlanta, Ga and promptly forwarded the same without delay to Fitzgerald, Ga., where the further transportation was suspended by reason of the intervening of Sunday, on which day the running of freight trains is forbidden by law, and the transportation was resumed and completed by bringing the apples to Waycross on the following day, and that there was no unreasonable delay in the transportation by the defendant, their verdict should be for the defendant. The request was altogether too argumentative, and such a charge would have intimated an opinion...
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