Southern Ry. Co v. Johnson

• Decision Date: 24 May 1907
• Docket Number: (No. 193.)
• Citation: 2 Ga.App. 36,58 S.E. 333
• Parties: SOUTHERN RY. CO. v. JOHNSON.
• Court: Georgia Court of Appeals

58 S.E. 333

(2 Ga.App. 36)

SOUTHERN RY. CO.

v.JOHNSON.

(No. 193.)

Court of Appeals of Georgia.

May 24, 1907.

1. Carriers—Carriage op Goods—Actions-Question for Jury—Delivery.

Delivery of freight to a common carrier, where an action is brought to recover for loss of articles alleged to have been delivered, is a question of fact for the determination of the jury.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 9, Carriers, § 596.]

2. Same — Contracts fob Transportation Implied.

Where the evidence authorizes a finding that certain goods were delivered to the agent of a railroad company, who received them and was made acquainted with their destination, a contract of carriage may be implied, although no bill of lading or receipt for the goods be issued and delivered to the shipper.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 9, Carriers, § 202.]

3. Same — Actions — Persons Entitled to Sue.

While, in the absence of a contract, a person who has no property, general or special, in goods, cannot sue in his own name, in tort, for the destruction of such goods by a carrier, nevertheless the contract need not be in writing, but may be implied from delivery and acceptance of the goods for shipment, and the consignor may sue for the loss or nondelivery, though he be but a bailee. "He has such a special property in the goods as to give him a right of action." Great Western R. Co. v. McComas, 33 111. 1S5. The shipper, if not the owner, holds the recovery in trust for the true owner.

4. Same.

"The shipper is a party in interest to the contract, and it does not lie with the carrier who made the contract with him to say, upon a breach of it, that he is not entitled to recover the damages, unless it be shown that the consignee objects." Hooper v. Railway Co., 27 Wis. 81, 9 Am. Rep. 439. (Syllabus by the Court.)

Error from Superior Court, Appling County;. T. A. Parker, Judge.

Action by Mrs. Johnson against the Southern Railway Company. Judgment for plaintiff, and defendant brings error. Mrs. Johnson having died pending the writ of error, J. C. Johnson, her administrator, was made party defendant in error. Affirmed.

De Lacy & Bishop and H. A. King, for plaintiff in error.

J. H. Thomas, for defendant in error.

RUSSELL, J. Mrs. Johnson, the plaintiff in the court below, agreed with Krauskoff Bros. & Co., of Savannah, Ga., to take a certain shipment of hats to her store; they insisting that she keep or buy all the hats in the shipment, but allowing her the privilege of returning to them such of the goods as she did not want. She took the goods on these conditions to her place of business and kept them for some time, but finally decided to ship back to them the larger portion of the goods, packed them in boxes, and had them marked "K. B. & Co., Savannah, Ga., " and delivered them to a drayman to take to the depot. The drayman swears that he delivered thegoods to the agents of Krauskoff Bros. & Co. at the depot, and that he delivered them as he was accustomed to deliver such goods. The evidence of the plaintiff showed that she delivered the goods to the agents of Krauskoff Bros. & Co., and that these agents accepted them for shipment, but failed to furnish her with a bill of lading, receipt, or other evidence of delivery. Krauskoff Bros. & Co. not having received any of the goods, or any bill of lading or receipt of shipment, naturally insisted on payment for the entire shipment, and Mrs. Johnson, having failed in her effort to return a portion of the goods, paid for them. She then sued the railroad company in a justice's court for the value of the goods delivered to the company. This suit was appealed to the superior court, and a verdict was rendered for the plaintiff. The original defendant in error, Mrs. Johnson, having died pending the writ of error, J. C. Johnson, her administrator, was made a party defendant in error.

Learned counsel for plaintiff in error insists that this action is a suit in tort, and that for that reason the plaintiff was not entitled to recover, because it appears that she had no title to the goods that were lost. While particularity of pleading is not required in justices' courts, we think it very clear that the suit is one on a contract of carriage arising from the transaction between the plaintiff as bailee and agent for Krauskoff Bros. & Co., and the defendant as common carrier. In the summons it is alleged that "all the articles named in said bill of particulars * * * were turned over to said company by petitioner to be transported, " etc.; "said railway company being a common carrier for hire, " etc., and "said railway company having failed to deliver the goods as agreed between them and the shipper, the said Mrs. J. C. Johnson, at their destination, Savannah, Ga., as aforesaid." We think that this alleges a contract, and asks recovery only for the breach of such contract; and it is only upon the theory that a contract was proved that the verdict can be sustained, for the plaintiff failed to show that she had title to the goods in question, and, of course, no one but the owner can recover damages in tort

The plaintiff in error claims that there was no contract; and the evidence certainly discloses that there was no written contract to carry the goods in question. It is insisted that the goods were never received; that the evidence fails to show proper identification of the goods sued for, or their delivery to the company. The plaintiff in error further contends that the defendant in error had no right to her recovery in the court below, because she had no title to the goods sued for. As to whether or not there was delivery and...