The Ocean S.S. Co. v. Mcalpin

• Decision Date: 30 September 1882
• Parties: The Ocean Steamship Company. vs. McAlpin, trustee.
• Court: Georgia Supreme Court

69 Ga. 437

The Ocean Steamship Company. vs. McAlpin, trustee.

Supreme Court of the State of Georgia

SEPTEMBER TERM, 1882.

Common Carriers. Damages. Negligence. Charge of Court. Presumption. Contracts. Custom. Before Judge Harden. City Court of Savannah. February Term, 1882.

In addition to the report contained in the decision, it is only necessary to state in connection with the fourth division thereof, that McAlpin testified that the master of the vessel on which his peas were shipped said that there had been a storm during the voyage, and the ports of the vessel were closed; that the storm ceased during the night, but he found on going below next morning that the ports had not been opened again, when he immediately ordered them to be reopened. On this evidence the charge in regard to admissions was requested.

Lawton & Cunningham, for plaintiff in error.

Garrard & Meldrim, for defendant.

Hall, Justice.

This was a suit against "The Ocean Steamship Company of Savannah, " brought to recover damages for thedecay of two lots of green peas shipped by the defendant in error over the company\'s line to New York, and alleged to have been damaged by improper stowage. One lot of ninety boxes was shipped on the 6th of March, 1880, and the other lot of two hundred and twenty-one boxes on the 12th of the same month. There seems to have been no doubt that the peas were damaged, but when and how the damage was occasioned, were the points in dispute. The plaintiff in the court below, who had a verdict for the amount of damage done to the two hundred and twenty-one boxes, and who recovered nothing for the ninety boxes, claimed that the peas were in good order when shipped, which was proved by the tickets to the drayman who delivered them on board the vessel, and which were admitted in evidence in place of the usual bill, of lading, and also by other testimony in the case, which it is unnecessary to set out in detail. The plaintiff in error (defendant below) insisted, that the damage, if any, was caused by inherent defects in the vegetables; that the stowage was proper, and that they were delivered in good condition in New York, as was shown by receipts of the draymen of the consignee at that city.

1. The defendant in the court below requested, in writing, this charge: "That if the jury found from the evidence that the several lots of peas which were damaged were received by the defendant and signed for as in good order, and the same were delivered and receipted for by the consignee or his agent, as in good order, then they could not presume, if they were afterwards shown to be damaged, that the damage was caused by the defendant, unless some negligence is shown on its part." The court gave this charge, but added thereto: "That if the damage existed before the receipt was given by the consignee, it lies upon the transportation company to show that they used all ordinary care and diligence." To this addition exception is taken, and we think well taken, because if the addition is not a direct contradiction of the charge as re-quested, it is at least so ambiguous that it was well calculated to mislead the jury. The request as asked, as it seems to us, asserted in plain terms, that the consignee\'s receipt for the peas in good condition, repelled the presumption that they were damaged on the voyage, by the negligence of the carrier, while the addition asserts just the contrary by instructing the jury, that if this damage existed before the receipt was given, then it was incumbent upon the transportation company to show that they used all ordinary care and diligence; that is to say, it must show the very fact which he had just instructed them that this receipt established. But granting that the addition does not contradict the request, we think that it is so ambiguous as to leave well informed and enlightened minds in doubt as to its real meaning and intention. Now, did this request assert the law, and was it pertinent and material to the issues between the parties? We think so, beyond cavil or question. In the case of the Central Railroad vs. Rogers, 57 Ga., 339, this court held that a receipt to the shipper that the goods were in good order at the place of shipment, was prima facie evidence of that fact as against the carriers; and if so, why is it not equally true that a similar receipt of the consignee is like evidence that the articles were in good order when delivered? When the request to charge is in writing, is legal and pertinent, the court should give it "in the language requested" (Code, 3715); or at least should, as has been often held by this court, give it substantially as requested. Where the question is one of evidence only, as was the case here, and there is room for apprehension that the jury, on account of the ambiguity of the charge, may have been misled in considering and weighing the testimony, it is safest to send the case back for another trial. 25 Ga., 184. If a charge in one of its bearings is not strictly legal, though it may be so in another, and on that account is calculated to mislead a jury, a new trial should be granted. 19 Ga., 335.

"Nothing, " says Lumpkin, J., 14 Ga., 142, "is more dangerous than to lay down general propositions which, instead of aiding, scarcely ever fail to mislead juries. Courts should apply the principles to the facts in evidence, stating the facts...