Nashville, C. & St. L. Ry. v. C.V. Truitt Co.

Decision Date25 September 1915
Docket Number6031.
Citation86 S.E. 421,17 Ga.App. 236
PartiesNASHVILLE, C. & ST. L. RY. v. C. V. TRUITT CO.
CourtGeorgia Court of Appeals

Syllabus by the Court.

It is now well settled that the effect of the act of Congress known as the Carmack amendment to the Hepburn Act (Act June 29 1906, c. 3591, § 7, pars. 11, 12, 34 Stat. 593 [U. S. Comp St. 1913, § 8592]), was to give to the federal jurisdiction control over interstate commerce, and to make supreme the federal legislation regulating liability for property transported by common carriers in interstate commerce; and it is also well settled that a carrier may, by a fair, just open, and reasonable agreement, limit the amount recoverable by a shipper, in case of loss or damage, to an agreed value made for the purpose of obtaining the lower of two rates of charges, according to the amount of the risk. Adams Express Co. v. Croninger, 226 U.S. 491-513, 33 S.Ct. 148, 57 L.Ed. 314, 44 L.R.A. (N. S.) 257.

Proof of delivery of an interstate shipment to the initial carrier, and of a failure to deliver it to the consignee, raises a presumption of negligence, so as to give rise to the liability imposed by the Carmack amendment, supra, for loss or damages caused by the initial carrier, or by any other carrier in the chain of transportation, and casts upon the initial carrier the burden of proving that the loss resulted from some cause for which the initial carrier was not responsible in law or by contract.

The jury were authorized to infer, from the evidence, that the death of one of the mules included in the shipment, for which damages were sought by the plaintiff, was brought about by negligence on the part of the carrier, and did not result on account of any of the excepted causes named in the contract of shipment.

Where a carrier has converted property intrusted to him for transportation, he will be deemed to have thereby abandoned the contract of shipment, and cannot thereafter insist on the stipulation therein that his liability shall be limited to a fixed sum, at which the goods are valued, nor insist upon the binding effect of such a stipulation, where the negligence which occasioned the loss was wanton or willful.

Under the Carmack Amendment, a carrier could by contract require an action against it to be brought within a reasonable stated time. Missouri, Kansas & Texas Railway Co. v. Harriman Brothers, 227 U.S. 657-673, 33 S.Ct. 397, 57 L.Ed. 690. (Act Cong. March 4, 1915, c. 176, 38 Stat. 1196, which forbids carriers to compel notice of claims in less than 90 days, their filing in less than 4 months, or the institution of suit within 2 years, has no application to the present case, which arose before that act was adopted.) "A carrier, who, by conversion of property which the carrier received for transportation, abandons the contract of carriage, cannot insist upon a stipulation in the bill of lading that claims for loss or damage must be made within a specified time, and in writing, to the carrier's agent at the point of delivery." Georgia, Florida & Alabama Railway Co. v. Blish Milling Co., 15 Ga.App. 142, 82 S.E. 784.

(a) The jury found that the carrier had abandoned the contract of carriage as to the three mules for which inferior mules were substituted.

(b) In the absence of any express ruling from the Supreme Court of the United States to the contrary, the agent of the terminal carrier, who was the agent of the initial carrier, authorized to deliver the shipment which it contracted to forward, was authorized to bind the initial carrier by an agreement coming properly within the scope of his duties in connection with the shipment, and a waiver on his part of the provisions in the contract requiring that notice of claims of loss should be in writing was therefore valid and binding. See Louisville & Nashville Railroad Co. v. Tharpe, 11 Ga.App. 465(3), 75 S.E. 677.

There was no substantial merit in any of the errors complained of, the evidence sufficiently supported the verdict, and the court did not err in overruling the motion for a new trial.

Error from City Court of La Grange; Frank Harwell, Judge.

Action by the C. V. Truitt Company against the Nashville, Chattanooga & St. Louis Railway. Judgment for plaintiff, and defendant brings error. Affirmed.

Tye, Peeples & Jordan, of Atlanta, and E. T. Moon, of La Grange, for plaintiff in error.

Hatton Lovejoy, of La Grange, for defendant in error.

WADE J.

At the former appearance of this case in this court (14 Ga.App. 767, 82 S.E. 465), a full statement of the facts adduced at the trial then under review was made, and since the evidence brought forth at the trial now under consideration was not materially different, except on one or two points, we deem it unnecessary to make any lengthy statement in regard thereto. It may be said that the evidence adduced at the trial now under review brings out more clearly and positively, and without contradiction on the part of any witness, that the mule which died in Nashville after its delivery to the carrier was a sound, young, and strong mule at 3:45 p. m. on the day it was loaded by the defendant in its car for shipment, and that before 6 p. m. thereafter on the same day, when the remaining mules were unloaded from the car (after the car had been moved a short distance and back again), this mule was discovered to be lying down in a helpless condition on the floor of the car. This evidence tended to negative a defense that this mule may have come to its death on account of the excepted causes covered by the contract of shipment.

Any specific evidence bearing precisely on points herein discussed will be referred to in the respective divisions of this opinion. It may be said, by way of preface, that the law governing this case, as declared in the previous decision of this court, is of course the law of the case, and this is said without meaning to intimate that the court even desires or thinks it necessary to recede in any important particular from any of the rulings therein laid down.

All the points involved that we consider it necessary to pass on explicitly are covered by the headnotes; but to some slight extent we consider it proper to enlarge upon some of the rulings therein enumerated.

In the case from which the following quotation is taken, Justice Lamar appears to have clearly recognized the doctrine declared in the second headnote above. The holding of the United States Supreme Court on the precise point needs no discussion, and is as follows:

In an interstate shipment, "when the holders of the bills of lading proved the goods had not been delivered to the consignee, the presumption arose that they had been lost by reason of the negligence of the carrier or its agents. The burden of proof that the loss resulted from some cause for which the initial carrier was not responsible in law or by contract was then cast upon the carrier. The plaintiffs were not obliged both to prove their case and to disprove the existence of a defense. The carrier and its agents, having received possession of the goods, were charged with the duty of delivering them, or explaining why that had not been done. This must be so, because carriers not only have better means, but often the only means, of making such proof. If the failure to deliver was due to the act of God, the public enemy, or some cause against which it might lawfully contract, it was for the carrier to bring itself within such exception." Galveston, H. & S. A. R. Co. v. Wallace, 223 U.S. 481, 492, 32 S.Ct. 205, 207, 56 L.Ed. 516-523.

It has been generally held that the effect of the Carmack amendment is to regard the initial carrier, engaged in interstate commerce and receiving property for transportation from a point in one state to a point in another, as having contracted for through carriage to the point of destination, using the lines of connecting carriers as its agents. Atlantic Coast Line R. Co. v. Riverside Mills, 219 U.S. 186, 31 S.Ct. 164, 55 L.Ed. 167, 31 L.R.A. (N. S.) 7; Louisville & N. R. Co. v. Scott, 219 U.S. 209, 31 S.Ct. 171, 55 L.Ed. 183; Southern Ry. Co. v. Bennett, 86 S.E. 418; Gibson v. Little Rock & H. S.W. R. Co., 93 Ark. 439, 124 S.W. 1033; Blackmer & P. Pipe Co. v. Mobile & O. R. Co., 137 Mo.App. 479, 119 S.W. 1; Travis v. Wells, F. & Co., 79 N. J. Law, 83, 74 A. 444; Earnest v. Delaware, L. & W. R. Co., 149 A.D. 330, 134 N.Y.S. 323; Greenwald v. Weir, 130 A.D. 696, 115 N.Y.S. 311; Missouri, K. & T. R. Co. v. Stark Grain Co., 103 Tex. 542, 131 S.W. 412, modifying (Tex. Civ. App.) 120 S.W. 1146.

The initial carrier cannot limit its liability in a through bill of lading to its own lines. Southern P....

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