Louisville & N. Ry. Co v. Lee

• Decision Date: 13 November 1907
• Citation: 59 S.E. 234,129 Ga. 473
• Parties: LOUISVILLE & N. RY. CO. v. WARPIELD & LEE.
• Court: Georgia Supreme Court

59 S.E. 234

129 Ga. 473

LOUISVILLE & N. RY. CO.

v.WARPIELD & LEE.

Supreme Court of Georgia.

Nov. 13, 1907.

1. Carriers — Carriage of Goods — Actions for Injury—Allegation of Specific Acts of Negligence—Necessity.

In an action instituted by a shipper of goods against a common carrier on account of the civil wrong occasioned to the shipper by reason of the fact that the carrier, having received the shipment in good order, did not transport it safely, but delivered it to the shipper, who was also the consignee, in a damaged condition, particular acts of negligence need not be alleged.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 9, Carriers, §§ 569, 570.]

2. Same—Nature of Liability.

When a carrier fails to deliver the goods intrusted to his care, or delivers them in a damaged condition, no excuse avails him, unless it was occasioned by the act of God, the public enemy, an inherent vice or natural deterioration of the object carried, or, in case of live stock, the viciousness of the animals, or that he is excused by special contract made with the shipper, by statute, or by negligence of the shipper.

(a) In an action against a carrier for the breach of duty to safely transport, specific allegations of negligence may be treated as surplusage.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 9, Carriers, §§ 481, 486, 569, 570, 929.]

3. Same.

The petition, as described in the third query of the Court of Appeals, was not open to the special demurrer made thereto.

4. Same.

So much of the case of Louisville & Nashville Ry. Co. v. Cody, 119 Ga. 371, 46 S. E. 429, as holds that it is necessary for a plaintiff, who elects to bring an action ex delicto against a railroad company for damages arising from a failure on its part to properly perform its duties as a common carrier of live stock, to specifically allege, when called upon to do so by special demurrer, the particular facts upon which he relies in support of his contention that the carrier was negligent touching the transportation of live stock intrusted to its care for shipment, is formally overruled.

(Syllabus by the Court.)

Certified questions from Court of Appeals. Action by Warfield & Lee against the Louisville & Nashville Railway Company for damage to goods in transit Judgment for plaintiffs, and defendant brings error to the Court of Appeals, which certifies questions to the Supreme Court

"The Court of Appeals desires the instruction of the Supreme Court as to the following questions of law for the proper decision of the above-stated case, to wit:

"(1) In a case where an action is instituted by the shipper of goods against a common carrier, on account of the civil wrong occasioned to the shipper by reason of the fact that the carrier, having received the shipment in good order, did not transport it safely, but delivered it to the shipper, who was also the consignee, in a damaged condition, is negligence of the carrier a necessary allegation?

"(2) In such a case, is proof of negligence by the plaintiff material or immaterial? And would it be any defense to the carrier to show that it had not been negligent in respect to the shipment? Or does the defendant's liability turn solely upon its ability to show that the damage resulted by act of God, the public enemy, or similar cause? In construing a petition against the carrier in such a case, may an allegation of the carrier's negligence (either general or specific), through which the carrier caused or allowed the damage to occur, and from which the civil wrong involved in the fact that the carrier did not transport the shipment safely (as it was under legal duty to do) arose, be treated as immaterial or rejected as surplusage?

"(3) In such a case, where the plaintiff in his petition alleges the fact of the delivery of the goods to the carrier under such circumstances as to raise the legal duty on the carrier's part to safely transport them, and as to raise the liability on the carrier's part for all damages to them save only such as may be occasioned by act of God or the public enemy; and further alleges a breach of this duty, in that the shipper did not safely transport the goods, but caused or allowed them to receive certain definitely described injuries; and, further, in addition to these allegations, alleges that the injuries to the shipment were caused by the negligent delay of the carrier (the nature of the delay having been specifically set forth) and by the carrier's negligence in failing to properly attend to the shipment (the same consisting of live stock) while the same was in its possession—is a special demurrer by the defendant, on the grounds that the acts of negligence charged against the defendant are not described, that it does not show wherein the defendant failed to properly attend the shipment, or what would have been proper attention thereto by the defendant, properly overruled by the trial court?

"In connection with the last question above stated, counsel for the defendant in error in the case at bar has, in accordance with the rules of this court, expressed a desire toquestion for the purpose of review the decisions of the Supreme Court in the case of Louisville & Nashville R. Co. v. Cody, reported in 119 Ga. 371, 46 S. E. 429; and this court, upon a consideration of the question, being of the opinion that the decision should be modified or overruled, in accordance with the rule of court for such eases made and provided, certifies the question together with said request to the Supreme Court."

Hardeman & Jones, for plaintiff in error.

Jos. H. Hall and Warren Roberts, for defendant in error.

EVANS, P. J. The questions propounded by the Court of Appeals involve matters of pleading and practice which were considered by this court in the case of L. & N. R. Co. v. Cody, in 119 Ga. 371, 46 S. E. 429. If the ruling in that case be adhered to, we could on its authority give categorical answers. But a motion was made in the Court of Appeals to examine and review that case as bearing on the pleading and practice questions submitted to us, and we are requested by the Court of Appeals to review so much of that decision as relates to the matters certified to us for instruction. In the case of L. & N. R. Co. v. Cody it was held that it is necessary for a plaintiff, who elects to bring an action ex delicto against a railroad company for damages arising from a failure on its part to properly perform its duties as a common carrier of live stock, to specifically allege, when called upon to do so by special demurrer, the particular facts upon which he relies In support of his contention that the carrier was negligent touching the transportation of live stock Intrusted to its care for shipment. Is the principle there stated a correct rule of pleading?

At common law a common carrier was bound to convey the goods of any person offering to pay his hire, unless the carriage be already full, or the risks sought to be imposed upon him extraordinary, or unless the goods be of a sort which he cannot convey or is not in the habit of conveying. A common carrier was an insurer of the goods Intrusted to his care, and was responsible for every injury sustained by them occasioned by any means whatever, except...