Southwestern R. Co. v. Davies

• Decision Date: 06 July 1936
• Docket Number: 25194.
• Citation: 186 S.E. 899,53 Ga.App. 712
• Parties: SOUTHWESTERN R. CO. v. DAVIES.
• Court: Georgia Court of Appeals

186 S.E. 899

53 Ga.App. 712

SOUTHWESTERN R. CO. v. DAVIES.

No. 25194.

Court of Appeals of Georgia, Second Division

July 6, 1936

Syllabus by the Court.

1. A railroad corporation, chartered by the state, is liable for a tortious breach, by a lessee of its tracks, of the common-law duty to the public to furnish, on request of a shipper, a suitable car, customarily furnished for the transportation of a perishable vegetable, in the absence of legislative act exempting it from liability therefor.

2. The Carmack Amendment to the Hepburn Interstate Commerce Act (49 U.S. C.A. § 20(11, 12), providing for suit against the initial carrier by the lawful holder of a bill of lading issued by that carrier, does not preclude an action in tort against the initial carrier as the actual tort-feasor, for the breach of a common-law duty to the public, or against the lessor whose line of railroad such carrier operates.

3. Properly construed, the instant petition as amended, being such a suit in tort against the lessor for the breach of a common-law duty by the carriers to the public to furnish a suitable car for freight transportation, was not, under the preceding rulings, subject to the general demurrer.

4. Where the failure to furnish a proper car for transportation causes a fruit or vegetable to arrive at its destination in a damaged condition, in an action in tort against the carrier for damages, ordinarily the measure of damages will be the difference between the market value of a like product transported with proper equipment and in good condition, and such value in the condition in which it arrived, both at the place of destination. But while the price at which the damaged product was sold is not the proper criterion in fixing the damage, evidence thereof is admissible as a circumstance in determining the market value of such a damaged product. The amendment to the instant petition claiming the proper measure of damages, was not subject to special demurrer because it alleged that the amount which was stated to be "the best price obtainable for the asparagus in its damaged condition" was also the sale price actually realized.

5. All of the special grounds of demurrer except the fifth were properly overruled.

6. It was error not to sustain the fifth special ground, attacking as immaterial parts of the eighth paragraph of the petition as to acts of the carrier with reference to refrigerating equipment after the alleged tort.

Error from Superior Court, Peach County; Malcolm D. Jones, Judge.

Action by E. G. Davies against the Southwestern Railroad Company. To review an adverse judgment, defendant brings error.

Affirmed in part, and reversed in part.

Harris Russell, Popper & Weaver, of Macon, for plaintiff in error.

Geo. B Culpepper, Jr., of Fort Valley, for defendant in error.

JENKINS Presiding Judge.

1. "A corporation charged with a duty to the public cannot, by sale or otherwise, dispose of its property or franchises so as to relieve itself from liability for acts done or omitted, without legislative sanction expressly exempting it from liability." Code 1933, § 22-716; Central of Georgia Ry. Co. v. Leonard, 49 Ga.App. 689 (1), 692-698, 176 S.E. 137. "A railroad company cannot divest itself of its public duties nor shirk its liabilities by simply allowing another corporation to take possession of its track and operate cars thereon. * * * The theory of liability is that where a railroad company owning the track suffers or licenses another corporation or person to discharge its public functions without legislative authority, the latter does so as the agent of the former." Gregory v. Georgia Granite R. Co., 132 Ga. 587 (1), 590, 64 S.E. 686. The operation of a railroad by such a lessee, "in the absence of express statutory authority exempting the lessor from liability for the acts of the lessee, does not change the relation of the lessor company to the public, and the servants of the lessee company are as to the acts for which the lessor company may be held liable, in legal contemplation as much the servants of the lessor as of the lessee." Georgia R., etc., Co. v. Tice, 124 Ga. 459, 52 S.E. 916, 4 Ann.Cas. 200. Therefore, a railroad corporation, chartered by the state and owning railroad tracks for the operation of trains, may be held liable, not only for tortious acts of commission done by another railroad corporation leasing or otherwise controlling the railroad properties, but for a tortious omission by such a lessee or operator and its agents in breaching a common-law duty to the public by failing to furnish, on the request of a shipper, a suitable car for the transportation of a perishable vegetable product.

2. Independently of the statutory duties required by the Code 1933,§§ 18-314 and 18-315, that railroad companies shall "furnish to any grower of peaches apples, cantaloupes, watermelons, or other perishable products, suitable icing and refrigerator cars, or other suitable cars for the transportation of such products, whenever application is made therefor in writing by the shipper 24 hours in advance of the time such car or cars are wanted for loading," or required by other Georgia statutes as to the furnishing of cars, a common carrier has a common-law duty to furnish cars suitable "for transporting, without unreasonable delay, the usual and ordinary quantity of freight [which is] offered to it, or which might be ordinarily expected in its business"; and although ordinarily it may not be bound, under its general duty as a common carrier, to provide special facilities for transportation, yet if in the usual course of its business, it has been accustomed to receive a product requiring a certain kind of car for its proper transportation, and has supplied such cars, a duty as at common law to furnish them will arise, the breach of which will render the carrier liable in an action in tort for the damages. Wadley Southern Ry. Co. v. Kent & Downs, 145 Ga. 689 (2, 3), 690-693, 89 S.E. 765; Youmans v. Georgia & F. Ry. Co., 142 Ga. 781 (1, b), 83 S.E. 784; Southern...