Oneal v. Frost

• Decision Date: 31 January 1874
• Citation: 51 Ga. 337
• Court: Georgia Supreme Court
• Parties: Smith & Oneal, plaintiffs in error. v. Francis A. Frost, defendant in error.

51 Ga. 337

Smith & Oneal, plaintiffs in error. v. Francis A. Frost, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1874.)

Warehousemen. Damages. Before Judge Buchanan. Troup Superior Court. November Term, 1872.

Smith & O'Neal had, in 1861, 1862 and 1863, taken in store, as warehousemen, various lots of cotton for Frost, the plaintiff below. In 1865, after the war, Frost demanded the cotton. It then appeared that from eighteen to twenty-eight bales were missing, and suit was brought against the defendants as warehousemen, for a breach of duty in failing to keep safely the plaintiff's cotton.

The defendants set up that a considerable portion of defendants' cotton was stored, with his knowledge, in certain houses and stables, distant from the warehouse, which defendants had rented for the purpose after theirs was filled. The evidenceshowed that their houses were seized by the Confederate military authorities shortly after the battle of Chickamauga, to be used as hospitals; that the cotton was thrown out in the streets; that after some time, the town authorities had removed it to a shelter over which defendants had no control. The evidence further showed that, at the time the cotton was thus thrown out, the defendants and the plaintiff were in the Confederate army as soldiers; that they had all applied for leave to come home and see to this very matter of which they had heard; that the plaintiff did get leave, and came home, but both the defendants failed; that the plaintiff removed and took care of other cotton of his which had been thrown out of other houses. One of the defendants came home without leave and saw the cotton in the streets, but did not take any steps to take care of it.

The defendants stated on oath that the plaintiff knew some of his cotton was stored in the houses alluded to; that he had seen them storing there day by day, and that a portion of his cotton was received by them and receipted for at said houses, *and that they had notified him, before he left the army to come home, that they would not be responsible for the cotton.

The plaintiff testified that he did not know any of his cotton had been removed from the warehouse to these houses, but he did not affirmatively deny either his knowledge that a portion of his cotton was stored in those houses, or that defendants had notified him that they would not be responsible for it.

The court charged the jury, amongst other things, as follows:

"If you believe from the evidence that the cotton, by an irresistible power, was thrown out of the houses in which it was deposited, and that the defendants, by the use and exercise of ordinary diligence, could not repossess themselves of it, and secure and preserve it, the defendants are not liable. But if you believe from the evidence that the defendants, by the use and exercise of ordinary diligence, could have possessed themselves of the cotton and have secured and preserved it, then the defendants are liable for the value of the cotton at the time of the demand, if a demand therefor was made by the plaintiff."

To this charge the defendants excepted.

The jury found for the plaintiff $4,000 00. The defendants moved for a new trial, on account of error in the above charge. The motion was overruled, and they excepted.

A. W. Hammond & Son, for plaintiffs in error.

1st. If this action was trover, the verdict should have been in the alternative: Code, secs. 3028, 3563, 3564.

2d. If it was not trover, demand was not pertinent to the cause, so far as fixing the measure of damages was concerned. Demand is only...