Southern Ry. Co v. Allison

• Decision Date: 07 June 1902
• Citation: 42 S.E. 15,115 Ga. 635
• Parties: SOUTHERN RY. CO. v. ALLISON.
• Court: Georgia Supreme Court

42 S.E. 15

115 Ga. 635

SOUTHERN RY. CO.

v.ALLISON.

Supreme Court of Georgia.

June 7, 1902.

CARRIERS—FAILURE TO DELIVER FREIGHT— EVIDENCE—INSTRUCTIONS.

1. In an action agaiust a railway company for damages for its failure to transport and deliver goods turned over to it for that purpose, it was not erroneous to allow plaintiff to testify that he had never been paid for such goods.

2. The declarations of the agent as to the business transacted by him are not admissible against his principal unless they were a part of the negotiation, and constituting the res gesta\ or else the agent be dead.

3. Waybills made out by a railway company, being declarations in its own favor, are not admissible in its behalf.

4. There was no error in refusing to give the last clause of the request to charge, referred to in the eleventh ground of the motion for a new trial.

5. The evidence failed to show that the cotton, for the loss of which the action was brought, was delivered to the defendant company, and for this reason a new trial should nave been granted.

(Syllabus by the Court.)

Error from superior court. Franklin county; A. B. Russell, Judge.

Action by T. F. Allison against the Southern Railway Company. Judgment for plaintiff. Defendant brings error. Reversed.

A. G. & J. B. McCurry, for plaintiff in error.

J. H. Skelton, for defendant in error.

FISH, J. T. F. Allison sued the Southern Railway Company for damages alleged to have been sustained by him on account of the failure of the defendant to transport and deliver two bales of cotton delivered to it for that purpose by the plaintiff. Defendant denied receiving the cotton sued for. Upon the trial there was a verdict for the plaintiff. Defendant made a motion for a new trial, which was overruled, and it excepted.

1. One of the grounds of the motion was that the court erred in permitting the plaintiff, over the defendant's objection, to testi fy: "I have never been paid for the cotton." The objection made was that the testimony was irrelevant. This ground is without merit. It was relevant for plaintiff, if he delivered the cotton to defendant for shipment, and it had failed to transport and deliver the same to the consignee, to show that plaintiff had not been paid for it, either by defendant or the consignee.

2. Another ground of the motion was that the court erred in permitting the plaintiff, over the objection of the defendant, to testify as follows: "Some two or three weeks after the shipment, I had a conversation with O, L. Moore, the defendant's agent, and he told me he did not ship the two bales I was claiming to have delivered, numbers 490 and 492. Said that he shipped and delivered 43 bales, all the cotton the bill of lading covered." The objection made to the admissibility of this testimony was "that the declarations were not made dum fervit opus, but after the transaction to which they related was over." It is difficult to see how the defendant was hurt by the admission of this testimony. If the agent meant by his statement that he had never received the two bales of cotton, then this testimony was in favor of the defendant. If, however, by stressing the word "ship, " it was sought to show that the agent had received the cotton but had not shipped it, then the objection made to the declarations of the agent should have been sustained, under the rule that "the declarations of the agent as to the business transacted by him are not admissible against his principal unless they were a part of the negotiation, and constituting the res gestae or else the agent be dead." Civ. Code, § 3034; Hematite Min. Co. v. East Tennessee, V. & G. Ry. Co., 92 Ga. 268, 18 S. E. 24.

3. Another ruling of the court complained of in the motion was the refusal to permit defendant to put in evidence copies of certain waybills, which were admitted by the plaintiff to be...