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

• Decision Date: 16 June 1905
• Citation: 51 S.E. 398,123 Ga. 386
• Parties: SELLERS v. SAVANNAH, F. & W. RY. CO.
• Court: Georgia Supreme Court

51 S.E. 398

123 Ga. 386

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

Supreme Court of Georgia

June 16, 1905

Syllabus by the Court.

Inasmuch as the law imposes liability upon a common carrier when a delivery of freight is made by mistake to a person not entitled to receive the same, it is the right of the carrier to call upon an unknown person claiming a shipment to identify himself and establish his claim thereto; and, where a bill of lading covering the shipment has been issued, the carrier may demand its production, as a condition precedent to making delivery.

The charge of the court was in accord with the law as above announced, and fully and fairly presented to the jury the issues they were called on to determine, notwithstanding some slight verbal inaccuracy of expression.

Though the court may, in passing upon a demurrer to the plaintiff's petition, have erroneously held he was not entitled to recover punitive damages in the event he established his alleged cause of action, the error so committed does not constrain the ordering of another trial the jury having found, upon ample evidence, that the defendant railway company had not committed any breach of its duty as a common carrier.

Error from Superior Court, Echols County; R. G. Mitchell, Judge.

Action by Philip Sellers against the Savannah, Florida & Western Railway Company. Judgment for defendant. Plaintiff brings error. Affirmed.

W. E Thomas and Wilcox & Johnson, for plaintiff in error.

Kay Bennet & Conyers and R. G. Tison, for defendant in error.

FISH P.J.

The plaintiff, Philip Sellers, purchased a bill of goods from a mercantile firm in Brunswick, Ga., and gave directions to have the goods shipped to him at Statenville, Ga. The goods duly arrived at that station over the line of the defendant railway company, and the plaintiff called upon the local agent to deliver them to him. They were marked with his initials "P. S." The agent declined to make delivery to him. According to the testimony of the plaintiff, the reason assigned by the agent for refusing to do so was that he had not received the waybill, and did not know the amount of the freight charges, though he at the same time expressed some doubt as to the plaintiff being the consignee of the goods. The plaintiff had but recently established a place of business 24 miles from the station, was a stranger in the community, and was unknown to the agent. The plaintiff offered to deposit with the agent $20 to cover the freight charges, but the agent declined to receive the money; saying it was against the orders of the company to deliver freight in the absence of a waybill. He further said he did not know the plaintiff, nor whether he was "the party entitled to the goods, or not, and didn't know whether the goods were shipped 'to order, notify,' bill of lading attached, or not. That was the reason he gave [for refusing to make delivery], and the only one. The agent said he wanted to see the waybill. He never mentioned the bill of lading at all." This occurred about the 23d or 24th of December. The plaintiff subsequently sent a neighbor who was known to the agent for the goods. The agent declined to deliver them on the ground that he had not received the waybill, and did not know what the freight charges were, but promised to deliver the goods to the teamster of this neighbor as soon as the amount of the freight charges was ascertained. Acting in behalf of the plaintiff, this party again called for the goods, but was confronted with the same statement from the agent. No tender of the goods was ever made to the plaintiff until some 10 months thereafter, when he declined to accept delivery, as the goods consisted of provisions and supplies, and had greatly deteriorated in value. Upon this evidence the plaintiff relied as sustaining his complaint that the defendant company had been guilty of a conversion of the goods, and was liable to account to him for the value of the same. In support of its defense that it had committed no breach of its public duty as a carrier, the company introduced as a witness its local agent, who testified substantially as follows: He had himself but recently gone to Statenville, and, while he had seen the plaintiff once in the latter part of November, the plaintiff was unknown to him when he came to see about his goods. The plaintiff being a stranger to him, he asked for the bill of lading; not knowing whether or not the goods, which were simply marked "P. S.," belonged to him. The plaintiff replied that he did not have the bill of lading, whereupon the agent said that if he had the "purchase bill," and it was marked "Paid," the goods would be delivered to him upon his paying $5. The agent thought the goods might have been shipped "to order, notify," and he knew that if they were so shipped, and he should deliver them to the wrong party, without requiring the production of the bill of lading, he would have to pay for the goods. Plaintiff did offer to pay the freight, but the agent had not received the waybill, and did not know the amount of the charges. He found out about January 7th that the goods were intended for the plaintiff, and, on the same day he received this information, tendered the shipment to him, but the plaintiff refused to accept delivery, saying he had already instituted suit against the company. The agent had previously delivered freight to responsible persons, whom he knew, without requiring them to produce a bill of lading. His reason for calling on the plaintiff to show a bill of lading was that the plaintiff was a stranger to him, and he did not know whether or not the plaintiff was the proper person to whom to deliver the shipment. The jury accepted the explanation given by the company's agent, excusing his refusal to make delivery of the goods prior to January 7th, and the court below declined to set aside the verdict which they returned in favor of the defendant.

1. Inasmuch as the law exacts of a common carrier of freight that it shall ascertain beyond question, before delivering goods to a person claiming the right to receive them, that he is the proper person to whom to make delivery, and puts upon the carrier the entire risk of making a mistake as to the identity of the consignee, it is but reasonable that the carrier should be permitted to exercise the right of calling on the consignee to establish his claim to the shipment. Hutch. Car. (2d Ed.) § 344. If the person who...