Southern Ry. Co v. Morrison

• Decision Date: 31 January 1911
• Docket Number: (No. 2,680.)
• Citation: 8 Ga.App. 647,70 S.E. 91
• Parties: SOUTHERN RY. CO. v. MORRISON.
• Court: Georgia Court of Appeals

70 S.E. 91

8 Ga.App. 647

SOUTHERN RY. CO.

v.MORRISON.

(No. 2, 680.)

Court of Appeals of Georgia.

Jan. 31, 1911.

(Syllabus by the Court.)

1. Judgment (§ 263^*)—Motion in Arrest— Grounds—Amendable Defects.

The failure of a petition to show jurisdiction is an amendable defect; and, if the delinquency is not challenged by demurrer, it is so cured by the verdict that motion in arrest of judgment will not lie therefor.

[Ed. Note.—For other cases, see Judgment, Cent. Dig. §§ 468-480; Dec. Dig. § 263.*]

2. Trial (§ 419*)—Motion for Nonsuit-Cure of Irregularity.

Where a motion for nonsuit, or for a dismissal in the nature of a nonsuit, is overruled, and the defendant thereafter introduces evidence by which the deficiency in the plaintiff's evidence is cured, the error, if any, in overruling the motion for nonsuit, is also cured.

[Ed. Note.—For other cases, see Trial, Cent. Dig. § 982; Dec. Dig. § 419.*]

3. Carriers (§ 130*)—Failure of Carrier to Deliver Goods—Actions—Venue.

If a person delivers a commodity to a railroad company for shipment from one county in this state to another, and the commodity is never shipped, and the evidence is such as to authorize the inference that the company or some of its agents made way with the commodity without shipping it from the point where it was delivered to the carrier, an action of trover and conversion may be maintained against the carrier in the county where the delivery to the carrier and the conversion took place.

[Ed. Note.—For other cases, see Carriers, Dec. Dig. § 130.*]

4. Sufficiency of Evidence.

The evidence authorized the verdict.

Error from City Court of Forsyth; W. M. Clark, Judge.

Action by King Morrison against the Southern Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Harris & Harris, for plaintiff in error.

Willingham & Willingham, for defendant in error.

POWELL, J. The petition alleged that the plaintiff delivered to the Southern Railway Company, at Dames Ferry, three bales of cotton, to be shipped to Macon, Ga., and that the defendant had converted it. As the petition nowhere discloses on its face that the cotton was delivered to the railroad company in Monroe County, or that Dames Ferry is in that county, where the suit was instituted, and nowhere affirmatively discloses that the conversion tools place in that county, it would have been subject to demurrer for failure to show jurisdiction; but failure to show jurisdiction in the petition is an amendable defect. Civ. Code, 1895, § 5098. Since it is an amendable defect, it is cured by verdict, and a motion in arrest of judgment will not lie.

2. At the conclusion of the plaintiff's evidence the defendant made a motion for a nonsuit. We incline to the view that, as the evidence then stood, nonsuit should have been granted. That the ruling may be understood, these facts and matters of law should be kept in mind: A person who has delivered goods to a carrier for shipment from one county in this state to another may, where the goods have not been delivered at destination, choose his venue by varying the form in which his action is brought. He can sue ex contractu in the county where the contract of shipment is made, or in the county where the contract is to be performed; that is, the county of the destination of the shipment. He can sue ex delicto for the carrier's failure to discharge its public duty of delivering the goods at the place of destination, and in that event the suit should be brought in the county where the delivery was to be made. If he can show an affirmative tort, can show that the goods were in fact wrongfully converted by the carrier in some other county than that of the destination of the shipment, he may sue in the county where the wrong took place, making the particular wrong itself, and not the breach of public duty in failing to deliver, the basis of his cause of action.

The plaintiff's case in the present instance rested on this last theory, not that the carrier had merely failed to discharge its public duty of delivering the...