Savannah, F. & W. Ry. Co. v. Hardin

• Decision Date: 07 April 1900
• Citation: 35 S.E. 681,110 Ga. 433
• Parties: SAVANNAH, F. & W. RY. CO. v. HARDIN.
• Court: Georgia Supreme Court

35 S.E. 681

110 Ga. 433

SAVANNAH, F. & W. RY. CO. v. HARDIN.

Supreme Court of Georgia

April 7, 1900

Syllabus by the Court.

1. When a record brought to this court contains nothing from which it could even be inferred that any question of the constitutionality of a particular statute upon which the plaintiff's action was based was at any stage of the case made in the trial court, or that such court in any manner undertook to pass upon such a question, the mere fact that the bill of exceptions assigns error upon a refusal to sustain a general demurrer to the petition, and dismiss the action, and also upon the overruling of a motion for a new trial containing a ground alleging that the verdict was contrary to law, does not properly raise here any question upon the constitutionality of such statute; and this is so though the bill of exceptions does in general terms state that the above-indicated rulings were erroneous because that statute was "class legislation, and special legislation and obnoxious to the constitution of the state, and therefore void"; and requires "impossibilities, and puts as a penalty the value of the goods lost, and takes the property of defendant without any just compensation therefor, and therefore amounts to confiscation, which is unconstitutional and void."

2. Treating sections 2317 and 2318 of the Civil Code as valid and constitutional, the petition in the present case set forth a cause of action as against the demurrer thereto filed by the defendant.

3. The trial judge having used, in the hearing of the jury, language well calculated to impress them that, in his opinion, the plaintiff was entitled to recover the full amount sued for and there being evidence warranting a finding in his favor for an amount less than that actually found, there must under the provisions of section 4334 of the Civil Code, be a new trial.

Error from superior court, Decatur county; W. N. Spence, Judge.

Action by A. S. Hardin against the Savannah, Florida & Western Railway Company. Judgment for plaintiff, and defendant brings error. Reversed.

D. H. Pope, for plaintiff in error.

Joe H. Gilpin, for defendant in error.

COBB J.

Hardin sued the Savannah, Florida & Western Railway Company alleging in his petition, in substance, as follows: He had delivered to the Southern Railway Company at Atlanta, Ga., certain articles for shipment to Bainbridge, Ga., over the line of the Southern Railway Company and its connecting carriers, the defendant being one of such carriers. All of the goods so shipped were duly delivered at Bainbridge, except one box, the contends to which were of the value of $300. Petitioner paid all freight charges that had been demanded by the Southern Railway Company and the defendant. "In terms of the statute in such cases made and provided, petitioner made application verbally to the local agent of the Savannah, Florida & Western Railway Company at Bainbridge, Georgia, the destination of the goods shipped as aforesaid, and also the general freight agent, in writing, of the last-mentioned railway company, to trace said freight, to wit, one box of household goods, not delivered, as aforesaid, and inform your petitioner where, how, and by when said freight as aforesaid was lost, damaged, or destroyed." The agent at Bainbridge, as well as the general freight agent, failed to trace the freight, and give the required information in writing within the time prescribed by law, "where, how, and by which carrier, the initial or connecting, said box of household goods was lost, damaged, or destroyed," and in consequence of such failure the defendant had rendered itself liable to the plaintiff in the sum of $300, besides $30 attorney's fees. To this petition the defendant filed a demurrer upon the following grounds: (1) It sets forth no cause of action; (2) it does not fully and distinctly set forth the cause of action; (3) no copy of the application to trace the freight is attached to the petition. The demurrer was overruled, and upon this ruling error is duly assigned. The case proceeded to trial. The plaintiff testified as to the delivery of the goods to the Southern Railway Company in Atlanta, and of the failure by the defendant to deliver at Bainbridge, and as to the value of the goods claimed to have been lost. Talbert, a witness for the plaintiff, testified that, as attorney for plaintiff, he made demand on the agent of the defendant at Bainbridge for the goods claimed to have been lost, and demanded that the defendant trace, as required by law, and report; and that he had never received any information from it in regard to the freight. As to the value of the goods, the testimony of plaintiff was that the articles contained in the box alleged to have been lost cost the respective amounts set forth in the petition, and that such amounts were the market value of the articles, except one article which was alleged to have been worth $54, which was worth but $10. Another witness testified that goods of the character claimed to have been lost were ordinarily worth about one-fourth of their original cost. The evidence further disclosed that title to goods contained in the box to the value of $30 was in the plaintiff's wife. The jury returned a verdict in favor of the plaintiff for $225, whereupon the defendant made a motion for a new trial on the following grounds: (1) Because the verdict is contrary to law, and without evidence to support it; (2) because, after the evidence was all in, the presiding judge asked, in the presence and hearing of the jury, "What is there to go to the jury on?" After a short silence, the defendant's counsel asked the judge if he meant by that to order a verdict for the plaintiff; to which the judge responded, "Yes," and asked counsel if he had any objection to it. To this counsel replied that he had nothing to say in reference to the matter except that he did object. After a further silence, the judge remarked, "Well, go on to the jury." The error assigned on this ground is that the language of the judge was such an expression of opinion as to the evidence in the case that a new trial should be granted. The judge overruled the motion, and the defendant excepted. The bill of exceptions assigns error upon the judgment overruling the motion for a new trial, and also upon the judgment overruling the demurrer; the latter judgment being alleged to be erroneous for various reasons, among them being that sections 2317 and 2318 of the Civil Code "are class legislation, and special legislation, and obnoxious to the...