Southern Ry. Co v. Parramore

• Decision Date: 04 March 1904
• Citation: 46 S.E. 822,119 Ga. 690
• Parties: SOUTHERN RY. CO. v. PARRAMORE.
• Court: Georgia Supreme Court

46 S.E. 822

119 Ga. 690

SOUTHERN RY. CO.

v.PARRAMORE.

Supreme Court of Georgia.

March 4, 1904.

CARRIERS—FREIGHT SHIPMENT—ACTION FOR DAMAGES—PLEADING.

1. A plaintiff cannot declare upon a special contract with a carrier, and then, by amendment, claim that he is not bound by the terms of such special contract, and add a new and distinct cause of action.

(Syllabus by the Court.)

Error from Superior Court, Fulton County; J. H. Lumpkin, Judge.

Action by P. J. Parramore against the Southern Railway Company. Judgment for plaintiff, and defendant brings error. Reversed.

Dorsey, Brewster & Howell, Sanders McDaniel, and J. D. Bradwell, for plaintiff in error.

J. Howell Green and Green & Preston, for defendant in error.

TURNER, J. P. J. Parramore brought a suit against the Southern Railway Company, alleging that on a certain day he "entered into a contract with said railway company, whereby it was to transport for petitioner five horses and four mules from Gainesville, Georgia, to Sandford, Florida, under the terms and conditions set out in said contract, " a copy of which was attached to his petition as an exhibit. He further alleged that while the stock was in transit, and while in the yards of the company at Atlanta, the door of the car in which the stock was shipped came open, and one of the horses fell from the car, falling between it and a platform near which the car was standing, and receiving injuries from which it died. The plaintiff charged that these injuries to the horse were "due to the negligence of said railroad company, in that the car in which said horses were shipped was defective, the door to said car not being securely fastened, there not being sufficient fastenings upon the same." The value of the horse was averred, and the plaintiff also alleged that by mistake of the agent of the company who made out said contract of shipment the initials of plaintiff's name were transposed, but that he was "the party to whom said live stock was shipped, was the owner of the same, and the party with whom said railroad company dealt, and that said transposition of initials was a mere clerical error." He accordingly prayed that this error be corrected, and that the contract declared on should be in this respect reformed. He also prayed that he might recover of the defendant company the alleged value of the horse, $200.

The exhibit annexed to the petition purported to be a "live stock contract" between the Southern Railway Company and its connecting carriers, as parties of the first part, and "J. P. Parramore, party of the second part." It recited that the company had received the live stock to be transported in accordance with the terms of the agreement therein set out, and to be delivered to the consignee at Sandford, Fla. This paper further recited that, in consideration of a reduced rate of freight, therein named, the party of the second part covenanted and agreed that he had examined and found in good order and condition the car provided by the company for the transportation of said live stock, and had accepted the same, and agreed that it was suitable and sufficient for said purpose. There were various other stipulations and conditions set forth as constituting part of the agreement, but it is not essential, for the purposes of this opinion, that they should be set out at length. The original contract was, if the alleged copy of it be correct, signed in the presence of two witnesses by "W. A. Ramson, Agent for the Company, " and by "J. H. Martin, " his signature appearing in the space provided for that of the shipper, with no indication as to the capacity...