Nashville v. Ham

• Decision Date: 02 December 1948
• Docket Number: No. 32117.,32117.
• Citation: 50 S.E.2d 831
• Parties: NASHVILLE, C. & ST. L. RY. v. HAM.
• Court: Georgia Court of Appeals

50 S.E.2d 831

NASHVILLE, C. & ST. L. RY.

v.HAM.

No. 32117.

Court of Appeals of Georgia,

Division No. 2.

Dec. 2, 1948.

Judgment Adhered to Dec. 17, 1948.

[COPYRIGHT MATERIAL OMITTED]

Syllabus by the Court

1. "Where the judge has finally passed on the merits of a motion for a new trial and the parties have raised no question as to the sufficiency of the approval of the grounds of such motion, or of the approval of the brief of evidence, or of the filing of such motion or brief, or of the jurisdiction of the judge to entertain the motion at the time he did, if the parties acquiesced in his entertaining it at that time, no question as to these matters shall be entertained by the reviewing courts unless first raised and insisted on before the trial judge." The motion to dismiss the writ of error because of the failure of the plaintiff in error to comply with the provisions of Code Ann. § 24-3364, is therefore overruled.

2. The contention that there was a fatal variance of the proof from the pleadings is not meritorious.

3. "In passing upon the motion for a new trial, that view of the evidence which is most favorable to the [plaintiff] must be taken, for every presumption and every inference is in favor of the verdict." So construed, the evidence authorized a finding by the trial judge, sitting without the intervention of a jury, that the plaintiff was not estopped to assert her claim against the carrier for common-law liability as to baggage lost on an interstate journey.

4. The trial court did not err in overruling the motion for a new trial.

Error from Civil Court of Fulton County; Robert Carpenter, Judge.

Action by Mrs. W. E. Ham against the Nashville, Chattanooga & St. Louis Railway, for full value of lost baggage. Judgment for plaintiff and defendant brings er-ror

Affirmed.

The plaintiff below, Mrs. W. E. Ham, brought an action for the full value of her baggage which had been checked with the defendant Nashville, Chattanooga and St. Louis Railway, while she was a passenger on an interstate journey from Tul-lahoma, Tennessee, to Kansas City, Missouri, the defendant having failed to deliver the baggage to her on demand at the end of the trip and the baggage not having been found since that time. It appears from the evidence in the record that the plaintiff's husband, Major W. E. Ham, purchased a ticket for the plaintiff and checked her baggage with J. W. Hoover, the baggage agent of the defendant at Tullahoma, stating at the time: "You don't want to lose this suitcase because it has the family jewels in it. My wife will run me out of town if you lose it." The baggage was accepted for transit by Hoover after further conversation which, as set forth in the record of Mr. Ham's examination, was as follows: "I told him I had checked bags in Washington, Chicago and other places and they required me to sign a release. * * * As I said before, I told him, 'Now, you don't want to lose this bag; it has all the family jewels and my wife's clothes in it.' and I says, 'Don't you want me to sign something here.' His reply was, 'No, this is a country railroad; we don't do that way.' * * * As to whether or not I told him what the baggage was worth--I did not give him an amount. I told him it had all of my wife's clothes and jewelry in it and for him not to lose it. After I told him that he didn't ask the amount. I also discussed the matter with Mr. J. C. Register, who, I believe, was the ticket agent at that time--about not requiring a signature when the bag was checked. He did not offer me anything on which to declare the value of the bag-gage. * * * I asked him 'Why don't you require people to sign something like they do in Chicago and Washington and other places that I have checked baggage.' The witness was then asked the following questions by defendant's attorney to which he made the following answers, to-wit:

"Q. You said: 'Why don't you require me to sign something?' A. Yes, sir, showing the value or the contents of the bag.

"Q. Now, what did you say? Did you say 'Why don't you require me to sign something?'--or did you say something further than that? What's the best recollection of your exact words you used there? A. Well, I was talking to him--I imagine that the exact words were: 'Ain't you got something for me to sign?'

"Q. And then what did he say? A. Something about--no, 'This is a country railroad; we don't do that way.' * * * Remember this is two and a half years ago. * * *

"I talked to Mr. Register [the ticket agent]. * * * I asked him why the N. C. & St. L. didn't require signatures like other big railroads for baggage, when you checked it through. He says this N. C. & St. L. operated in different territory from Chicago. * * * I said, 'I gave Mr. Hoover a bag about noon and he didn't require a signature. Why don't you people require a signature.' All he said was the N. C. & St. L. operated in different territory. That was the only reason. I didn't ask Mr. Hoover for a declaration blank. I asked Mr. Hoover for a declaration blank, not in specific words, however. What I said was 'Don't you want me to sign something?' I didn't ask him for a declaration blank, and I didn't ask Mr. Register for a declaration blank. I did ask them, though, why they didn't require one.

"The Court then asked this witness the following questions to which the witness made the following answers, to-wit:

"The Court: 'Did you know in particular what the declaration blank was, or anything?'

"The witness: 'No, sir, I just called it something to sign.'

"The Court: 'To show that your baggage was worth more than the average baggage?'

"The Witness: 'Yes, sir.'"

A certified copy of the defendant's baggage tariff on file with the Interstate Commerce Commission was introduced in evidence, and showed that ISO pounds of baggage, not exceeding $100.00 in value, may be checked without additional charge for each adult passenger; that unless a greater sum is declared by the passenger and charges paid for excess value at the time of delivery to the carrier, the value of the baggage belonging to or checked by the passenger shall be agreed not to be in excess of $100.00, and the carrier will not assume responsibility for a greater sum in case of loss or damage; and that there is an excess charge of $0.10 for each $100.00, or part thereof, in excess of $100.00.

Following the introduction of this and other evidence, not here material, the court, sitting as judge and jury, returned a verdict for the plaintiff in the full amount claimed as the value of the luggage and entered judgment in accordance therewith. The defendant made a motion for a new trial, which was overruled and he excepted to the judgment of the court overruling his motion.

The defendant, here plaintiff in error, contends that the court erred in overruling his motion for a new trial on the grounds that the defendant's tariff filed with the ICC was binding on the plaintiff and that she was charged by the law with the knowledge thereof; that the plaintiff's failure to declare a greater sum than $100.00 constituted an election on her part to check her baggage under the lower tariff rate and that the carrier's liability was limited to $100.00 by the election; that the fact that the plaintiff's husband cautioned the defendant's baggage agent not to lose the suitcase because it contained the family jewels and asked the agent for something to sign did not constitute an election to declare a greater value than $100.00 and was not a request or demand that the baggage be checked at the higher rate; and that the statement of the defendant's baggage agentthat the defendant carrier did not require a passenger in checking baggage to sign anything did not constitute a refusal to check the baggage under the higher rate and did not deprive the plaintiff of a choice of rates or of the opportunity to check her baggage under the higher tariff rate. The defendant also contends that the plaintiff did not prove her case as laid in the pleadings and that there is a variance between the allegations and the proof.

The plaintiff, here defendant in error, contends that the evidence authorized the court, sitting as a jury, to find that the defendant denied to the plaintiff a choice of rates and that the plaintiff was therefore not estopped to claim the full value of the baggage, and that this court has no jurisdiction to weigh the evidence on this issue and make a contrary finding of fact. The defendant in error also made a motion to dismiss the writ of error.

Tye, Thomson, Tye & Edmondson, of Atlanta, for plaintiff in error.

George W. Willingham and Julian E. Gortatowsky, both of Atlanta, for defendant in error.

MacINTYRE, Presiding Judge.

1. The defendant in error has made a motion to dismiss the writ of error on the grounds that the written notice of the time and place at which the brief of evidence is to be presented to the trial judge for his approval, required by Ga.L., 1946, pp. 726, 744, § 19, Code Ann. § 24-3364 to be given opposing counsel, was not given him and that he did not waive the notice in writing. It appears from the record that the plaintiff in error filed a motion for a new trial on January 12, 1948, the date of the original trial; and the trial court set January 29, 1948, as the date for a hearing on the motion, granting leave to the movant to file the brief of evidence and perfect the motion at any time prior to the final hearing. While no order of continuance is set forth in the record, the trial judge certified in the bill of exceptions that the hearing on the motion had been regularly continued until May 14, 1948. The brief of evidence was presented and approved on that date and the hearing on the motion for a new trial, at which the motion was overruled, was had on that date also. It nowhere appears from the record that counsel for the defendant in error objected to the approval of the brief of evidence at the time of the hearing on the motion for a new trial, or at any other time prior to the...