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

• Decision Date: 21 July 1914
• Docket Number: 5410.
• Citation: Nashville, C. & St. L. Ry. v. C.V. Truitt Co., 82 S.E. 465, 14 Ga.App. 767 (Ga. App. 1914)
• Parties: NASHVILLE, C. & ST. L. RY. v. C. V. TRUITT CO. No. 5409. C. V. TRUITT CO. v. NASHVILLE, C. & ST. L. RY.
• Court: Georgia Court of Appeals

82 S.E. 465

14 Ga.App. 767

NASHVILLE, C. & ST. L. RY. v. C. V. TRUITT CO.

No. 5409.

C. V. TRUITT CO. v. NASHVILLE, C. & ST. L. RY.

No. 5410.

Court of Appeals of Georgia

July 21, 1914

Syllabus by the Court.

The provisions in the Carmack amendment of July 29, 1906, c 3591, § 7, pars. 11, 12, 34 Stat. 593 (U. S. Comp. St. Supp. 1911, p. 1307), to the act of February 4, 1887, c. 104, § 20, 24 Stat. 386 (U. S. Comp. St. 1901, p. 3169), that no contract, receipt, rule, or regulation shall exempt an interstate carrier from the liability thereby imposed, does not forbid a limitation of liability, in case of loss, to a valuation agreed upon in the contract of shipment, for the purpose of determining which of two alternative rates shall apply to the shipment.

Where in the course of transportation of live stock by a common carrier, inferior animals are substituted for some of those originally shipped, a conversion on the part of the carrier may be presumed; and although the substitution occurs in the course of an interstate shipment, made under a contract limiting liability to an agreed valuation for each animal shipped, a recovery of damages based on the actual value of the animals would be authorized, unless the explanation offered by the carrier is sufficient to negative the idea of a wrongful conversion, and of negligence amounting to gross or wanton negligence on the part of the carrier. Whether the explanation is sufficient is a question for determination by the jury.

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, and plaintiff files cross-bill of exceptions. Judgment on cross-bill of exceptions reversed and main bill of exceptions dismissed.

C. V Truitt Company sued out an attachment against the Nashville, Chattanooga & St. Louis Railway, and filed a declaration alleging that the plaintiff delivered to the defendant a car load of mules, to be transported from Nashville, Tenn., to La Grange, Ga., that one of the mules died in transit, and its value was $250, and that three of them were, without the knowledge or consent of the plaintiff, exchanged or substituted in transit for three others, which were $200 less in value than the three for which they were substituted. It was alleged that the railway company was guilty of negligence, because the floor of the car in which the mules were placed was in a wet and slippery condition, and the amount of sawdust or other material placed on it was not sufficient to dry it or prevent the feet of the mules from coming in contact with it, and they could not safely stand thereon; that unusual and unnecessary force was used in the effort to couple the car to the engine, and that, in starting off with the car after it had been coupled, the engine gave an unusual and unnecessary jerk; that, in stopping for the purpose of switching the car to the yards, the engine was stopped too suddenly, and the unusual and unnecessary suddenness with which it was stopped caused "a jerk and bump" to the car, and, in starting off from this position, the engine started too suddenly and too rapidly, and gave an unusual and unnecessary jerk to the car; that, by reason of the sudden starting and stopping and jerking of the car, one of the mules fell down, and, because of the slippery condition of the floor, was unable to get up again; that, after the mule had been thrown down, the car was carried back and unloaded in one of the stock pens of the railway company, with the exception of this mule, which was allowed to remain all nigh in the car, exposed to extremely cold weather, and was not removed until the next morning; and that the result of all of this negligence was the loss of the mule by death. It was alleged, as to the three mules substituted for mules of the plaintiff, that on arrival of the car at La Grange the plaintiff called the attention of the agent of the delivering railroad company to the substitution, and had a written exception noted, and the agent agreed to have reparation made. By amendment it was alleged, as to the valuation expressed in the bill of lading (and relied upon by the defendant as limiting its liability), that the valuation was not agreed upon in order to secure a lower rate or any particular rate, but was merely stated in a printed bill of lading, used generally by the defendant without any regard to the actual value of the stock shipped, and that the printed value in this bill of lading was not in fact the reasonable value of the stock shipped, and was never understood to be the real value, either by the plaintiff or the defendant.

The defendant, in its answer, denied the allegations as to negligence, and as to the substitution of three inferior mules, and pleaded that, if it was liable for the loss of the mule that died, the contract of shipment limited its liability to $100; it being stated in the bill of lading, under which the shipment was made from Nashville, Tenn., to La Grange, Ga., that in consideration of the acceptance by the railway company of the reduced rate of $86 per car, instead of the tariff rate of $172 per car, it is agreed by the shipper that:

"Should loss or damage occur for which the [railway company] may be liable, the value at the place and date of shipment shall govern the settlement, in which the amount claimed shall not exceed, * * * for horses and mules, each $100, which it is agreed [is] as much as such animals as herein agreed to be worth are reasonably worth."

The defendant pleaded further that it was released from liability by the stipulation in the bill of lading that:

The shipper "hereby assumes all risk of injury which the animals or any of them may receive in consequence of either or any of them being wild and unruly or weak, and of the escape of any portion of said stock, or by maiming each other or themselves, or in consequence of heat or suffocation or other ill effects of being crowded in the cars."

It was further pleaded that the plaintiff had failed to give the written notification as to the alleged loss or damage as required in the contract.

The trial resulted in a verdict in favor of the plaintiff for $119.50. The defendant made a motion for a new trial on the usual general grounds only, the motion was overruled, and it filed a bill of exceptions. The plaintiff also made a motion for a new trial, which was overruled, and it filed a cross-bill of exceptions. The plaintiff's motion for a new trial was upon the usual general grounds, and upon the special ground that the court erred in charging the jury that, as a matter of law, the plaintiff was bound by the valuation expressed in the contract of shipment, and could not recover more than the sum of $100 for each horse or mule, and that, it being admitted by the plaintiff that it accepted the substituted mules and sold them, and that each was worth more than the $100 valuation expressed in the contract of shipment, the plaintiff could not recover for any difference in price between the mules shipped and the mules so substituted; and the only question in the case that the jury might consider was whether or not the plaintiff was entitled to recover anything for the mule which it was alleged had died. It was contended that the court erred in these instructions, because they were not authorized by the evidence, and because, under the evidence, the question of damages resulting from the alleged substitution should have been submitted to the jury, and, further, "because the contract of shipment and the value admitted by the plaintiff, in the pleadings, of the three substituted mules actually received by the plaintiff did not preclude a recovery by the plaintiff of the damages suffered by reason of the substitution of said mules."

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

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

WADE, J. (after stating the facts as above).

Since the controlling question in this case is involved in a consideration of the points raised by the cross-bill of exceptions, it would be futile to consider or discuss the sole question raised by the main bill of exceptions, sued out because the court refused to grant the defendant's motion for a new trial, which was based entirely on the alleged insufficiency of the evidence to sustain the verdict. Under the ruling hereinafter made on the cross-bill, the case must go back for another trial, and the evidence adduced at that trial may be radically different from that contained in the present record.

1. Since the Carmack amendment of June 29, 1906, has received interpretation from the Supreme Court of the United States, the rule heretofore maintained in Georgia, under the decisions of our Supreme Court, and of this court, as exemplified in the cases of Louisville & Nashville Railroad Co. v. Tharpe, 11 Ga.App. 465, 75 S.E. 677, and Central of Georgia Railway Co. v. Hall, 124 Ga. 322, 52 S.E. 679, 4 L.R.A. (N. S.) 898, 110 Am.St.Rep. 170, 4 Ann.Cas. 128, as to limitation of liability by a common carrier by means of a contract prearranging the amount of damages, has been materially qualified. In the case of Adams Express Co. v. Croninger, 226 U.S. 509, 33 S.Ct. 153, 57 L.Ed. 314, 44 L.R.A. (N. S.) 257, the Supreme Court says that:

It is "an established rule of the common law * * * that such a carrier may by a fair, open, just, 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 or more rates of charges proportioned to the amount of the risk."

Also in the same case, the court holds that under the Carmack amendme...