Wallace v. Matthews

• Decision Date: 31 December 1869
• Parties: C. WALLACE, Superintendent Western and Atlantic Railroad, plaintiff in error. v. JOSEPH R. MATTHEWS, defendant in error.
• Court: Georgia Supreme Court

39 Ga. 617

C. WALLACE, Superintendent Western and Atlantic Railroad, plaintiff in error. v. JOSEPH R. MATTHEWS, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, December Term, 1869.)

Evidence. Common-carriers. Before Judge Pope. Fulton Superior Court. May Term, 1869.

On the 11th of November, 1865, the Western and Atlantic Railroad agent received for shipment certain cotton, and gave therefor a receipt, as follows:

"Western and Atlantic, East Tennessee and Georgia, Virginia and Tennessee, and Orange and Alexandria Railroads.

THROUGH FREIGHT LINE CONTRACT. Route by rail as above, and per steamer to New York.

Atlanta, Ga., November 11, 1865.

Received of Elliott & Jarnegan, consigned to Ober, Nanson & Co., New York, the following described packages, in *apparent good order, (contents and value unknown,) consigned as marked in the margin, to be transported over the line of this road to the Company's station at its terminus, and delivered in like good order to the consignees or owners at said station, or to such company or carriers (if the same are to be forwarded beyond said station) whose line may be considered a part of the route, to the place of destination of said goods or packages, it being distinctly understood that the responsibility of this Company as a common-carrier shall cease at the station where delivered to such person or carrier; but it guarantees that the rate of freight for the transportation of said packages from Atlanta to New York shall not exceed ten 75-000 dollars per bale and charges advanced by this company: Provided, that no carrier or company forming a part of the line over which said freight is to be transported, will be responsible for damages, or detention at its terminus, or beyond on any part of the line, arising from any accumulation or over-pressure of business, upon the following conditions: The owner or consignee to pay freight or charges as per specified rates upon the goods as they arrive. Time not guaranteed. Freight carried by this Company must be removed from the station during business hours, on the day of its arrival, or it will be stored at the owner's risk and expense, and in the event of its destruction or damage, from any causewhile in the depot of the Company, it is agreed that the Company shall not be liable to pay any damage therefor. It is agreed and is a part of the consideration of this contract, that the Company will not be responsible for leakage of liquids, breakage of glass or queensware, the injury or breakage of looking-glasses, glass show-cases, picture-frames, stove-castings or hollow-ware, nor for injury to the hidden contents of packages, nor for the loss of weight or otherwise, of grain and coffee in bags, or rice in tierces, nor for the decay of perishable articles, nor for damages arising to any article caused from the effects of heat or cold, nor for the loss of nuts in bags, or lemons or oranges in boxes, unless covered by canvass, or loss or damage to goods occasioned by providential causes, or by fire from any cause *whatever, while in transit or at stations. The Company will not be responsible for damage in tobacco, unless it is proved to have accrued during the time of its transit over this road, and of this, notice must be given within thirty hours after the arrival of the same. Freight to be paid on the weight by the Company\'s scales. This Company not responsible for accidents or delays from unavoidable causes. The responsibility of this Company as carriers to terminate on the delivery of the freight as per this bill of lading to the company whose line may be considered a part of the route to the place of destination of said goods or packages. In the event of the loss of any property for which the carriers may be responsible under this bill of lading, the value or cost of the same at the point and time of shipment, is to govern the settlement for the same. And in case of loss or damage of any of the goods named in this bill of lading, for which this Company may be liable, it is agreed and understood that they may have the benefit of any insurance effected by or on account of the owner of said goods. Flour barrels and all packages subject to unnecessary cooperage, gun-powder and friction matches, not carried. This receipt to be presented without alteration or erasure.

                -------------------------------------------------------------------------------
                |No.|Articles.                                          |Marks.   |Said to    |
                |   |                                                   |         |Weigh.     |
                |---|---------------------------------------------------|---------|-----------|
                |   |Forty-seven bales of cotton, part in bad order. No.|W. M. N. |           |
                |   |308. Original.                                     |Y.       |           |
                -------------------------------------------------------------------------------
                

B. B. AMOS, Agent,

Per Van Epps."

Twenty-three bales of this cotton were never delivered to Ober, Nanson & Co., and on the 6th of January, 1869, Joseph R. Matthews brought assumpsit against said railroad as a common-carrier, for its value, in one count declaring that it should have delivered it to consignees in New York and did not, and in another that it should have delivered it to the connecting road at Dalton, Georgia, and that it did not. On the 7th of January, 1869, Campbell Wallace, then Superintendent of said railroad, delivered to plaintiff\'s attorney a *written admission, signed by him as such Superintendent, as follows:

"With the understanding that I, the defendant, shall have the same right that is hereby given to the plaintiff—to take other testimony in the cause above stated (Joseph R. Matthews v. C. Wallace, Superintendent Western and Atlantic Railroad—Assumpsit, in Fulton Superior Court,) in order to save expense, trouble and costs of proving the following facts, about which there is no dispute, we hereby admit the same, and will not controvert the truth of them on the trial of said cause; that is to say: We admit the handwriting of B. B. Amos, agent, to the receipt dated 11th November, 1865; that said forty-seven bales of cotton therein mentioned belonged to said plaintiff; that they received by said defendant for shipment; that twenty-three bales of the same were destroyed by fire, while in possession of said defendant as a common-carrier; that the said twenty-three bales weighed twelve thousand and twenty-six (12026,) pounds, worth, at Atlanta, on said day, forty-two and 86-100 (42 86-100) cents per pound; that the plaintiff had paid that price for it in cash, to-wit, the sum of five thousand one hundred and fifty-four and 34-100 ($5,154.34) dollars on that day; that it was worth the same amount in Dalton, at the time it ought to have been delivered there, plus the freight to Dalton, which was — dollars per bale; and further, we admit that a demand for settlement was made in terms of the law, and settlement refused."

The only plea filed was the general issue. Plaintiff obtained a verdict on the 11th November, 1867, for $5,154 34, with interest and cost, and defendant appealed.

On the 25th of December, 1867, defendant's attorneys gave notice to plaintiff's attorneys that said admission "is withdrawn, and hereafter the defendant does not agree thereto, " and on the same day, plaintiff's attorneys replied, that they would insist upon said admission "as binding on defendant as evidence, " and would object to its withdrawal. On the appeal trial, in June, 1869, plaintiff's attorneys offered in evidence said admissions.

*Defendant's counsel produced the notice of withdrawal and objected to the admissions as evidence, upon the grounds that they had been withdrawn, and because Wallace had no authority to make such admissions, "he being only agent or trustee." Plaintiff's counsel produced their reply to the notice of withdrawal, and stated in their place, to the Judge, that the admission was made in presence of defendant's counsel (which was not disputed,) and the Court overruled the objection and the admission was read to the jury. Plaintiff's counsel also read in evidence written admissions made by defendant's attorneys, on the 4th of January, 1868, in which they admitted all the facts ad-mitted by Wallace, except that the cotton belonged to plaintiff, that defendant received it for shipment and that twenty-three bales of it were destroyed by fire while in possession of defendant as a common-carrier.

It was shown by the testimony of plaintiff, that he delivered the cotton and took the receipt, that nothing was said to him by the person signing and delivering the receipt about any special contract releasing the defendant from accountability for loss by fire; the loss of the cotton by fire or otherwise was not the subject of conversation; he shipped his cotton in the name of Elliott & Jarnigan, made out this receipt himself in their names, and got it signed by the agent of the defendant; and he testified that the lost cotton was worth $5,464 99, at the date of shipment. As there was no controversy as to the failure of the defendant to deliver said twenty-three bales to the connecting railroad at Dalton, or as to the burning of the cotton, the evidence on these points is not material to an understanding of the opinion. Elliott, of the firm of Elliott & Jarnigan, testified that his firm was engaged in shipping cotton as agents of the East Tennessee and Georgia Railroad and connecting roads, comprising a line from Alexandria, Virginia, to Atlanta, Georgia, and were employed by the Superintendent of the East Tennessee and Georgia Railroad, who was acting as agent of the Virginia route, their duty was to solicit shipments over said route and ship the cotton, and they were paid by the connecting roads *from Alexandria, Virginia, to Dalton, Georgia; that they were not the agents of the owners; that said firm name was used in said receipt because the cotton came to Atlanta, consigned to said firm, and...