Way v. Southern Ry. Co.

• Decision Date: 17 June 1909
• Citation: 64 S.E. 1066,132 Ga. 677
• Parties: WAY v. SOUTHERN RY. CO.
• Court: Georgia Supreme Court

64 S.E. 1066

132 Ga. 677

WAY v. SOUTHERN RY. CO.

Supreme Court of Georgia

June 17, 1909

Syllabus by the Court.

Where several articles of household furniture, included in a single shipment and covered by one bill of lading, which mentioned them in detail, were delivered in good order to the first of a connecting line of common carriers, for transportation over the entire line, and where the last of the connecting carriers delivered some of the articles to the consignee, but not all of them, in a suit by the consignee against the final carrier, based on its common-law liability, upon proof of such facts and of the value of the articles lost, he made out a prima facie case, and shifted the onus to the defendant to show that it did not receive the lost articles, or otherwise was not liable for the loss; and it was error to direct a verdict for the defendant.

[Ed Note.-For other cases, see Carriers, Cent. Dig. § 835; Dec Dig. § 185. ^[*] ]

If in such a case the plaintiff was not entitled to recover for articles of clothing claimed to have been packed in a washstand and dresser which formed a part of the shipment and were lost, this would not authorize the direction by the court of a verdict for the defendant, denying any right to recover for the lost furniture.

[Ed Note.-For other cases, see Carriers, Dec. Dig. § 177 ^[*]]

Error from Superior Court, Chatham County; Walter G. Charlton, Judge.

Action by W. R. Way against the Southern Railway Company. Judgment for defendant, and plaintiff brings error. Reversed.

Atkinson, J., dissenting.

Saussy & Saussy, for plaintiff in error.

Osborne & Lawrence, for defendant in error.

LUMPKIN J.

The controlling question is whether the plaintiff made out such a case as required its submission to the jury, or whether the presiding judge was authorized to direct a verdict. The plaintiff showed a shipment of household goods consisting of various articles mentioned, covered by a single bill of lading, and of which the weight was stated in bulk. They were received at Watertown, N.Y., by the New York Central & Hudson River Railroad Company, in good order. The shipment was to be carried to Savannah, Ga., and delivered to the plaintiff. Some time later at Savannah the Southern Railway Company, the last carrier in the line, delivered a portion of the articles included in the shipment to him. The defendant's delivery clerk informed the plaintiff that the goods which were not delivered had been lost in transit, that they would probably "turn up," and that, if they did not do so, the plaintiff should file a claim with the defendant company. The plaintiff never received the lost goods. This suit was not brought on an express contract or based on Civ. Code 1895, § 2298, but upon the common-law liability of the defendant as a common carrier.

1. It is well established that, where personal property is delivered in good order to the first of a connecting line of common carriers for transportation, and the last connecting carrier delivers it to the consignee in a damaged condition, such final carrier may be held liable in an action for the damage, without other proof that such damage was occasioned by his fault, unless he can show that he received the property in the condition in which he delivered it, or that the damage was caused by the act of God or the public enemy. In reference to some kinds of property also it has been held that proof that the damage arose from inherent qualities, and without negligence on the part of the carrier, might furnish a defense. In such a suit against the final carrier, it is not incumbent on the plaintiff, as a part of his case, to show by direct evidence that the property was delivered to the final carrier in good order; but the burden is on the defendant to show that it was not responsible for the damaged condition at the time of delivery. Forrester v. Georgia Railroad Co., 92 Ga. 699, 19 S.E. 811; Bell v. Western & Atlantic R. Co., 125 Ga. 510, 513, 54 S.E. 532. In the decisions of various courts three different reasons have been assigned for this ruling: (1) The presumption of continuity of condition once shown, by virtue of which, upon proof of delivery in good order to the first carrier, the property would be presumed or inferred to continue in the same condition until the contrary was shown. This has been applied even to such articles as cabbages and melons, as will appear from the cases above cited. (2) That a carrier is not obliged to receive goods in such a damaged condition as to be unfit for shipment, or, if it must receive property from a preceding carrier in a damaged condition, it does not have to receive them as in good order, but may receive them specially as in bad order; and that, if it does receive and deliver them, in the absence of any proof that they were not received as in good order, it may be presumed that they were so received. Breed v. Mitchell, 48 Ga. 536; Paramore v. Western R. Co., 53 Ga. 383, 386. (3) That, when the shipper resigns his property into the custody of the initial carrier, it becomes practically impossible for him to watch it at all points during the progress of transportation over the connecting lines, or to know just where the damage was done, or in the custody of which carrier the property was at the time, that the condition in which each carrier received it lies peculiarly within such carrier's knowledge, and not that of the shipper, and the proof of such facts is peculiarly in the power of the carrier, and therefore, when the last carrier delivers the property in a damaged condition, and is called on to answer for having done so, the burden is on such carrier to show that it was not responsible for the damage.

Sometimes one of these grounds has been advanced as a basis of a decision, sometimes more than one. They often merge into each other. Thus the statement, in the second ground, that the burden is on the carrier because he might protect himself by expressly receiving the goods as not in good order, involves also the third proposition that it is peculiarly within his knowledge as to whether he did in fact receive the goods as in good order, or as in bad order. In Smith v. New York Central R. Co., 43 Barb. (N. Y.) 225, it was said broadly that: "The owner of goods, suing a common carrier to recover damages for an injury happening to the goods through negligence, must give evidence sufficient to show that the goods were in good condition when they came to the possession of the defendant, as a part of the evidence that they have been injured while in his custody." But, in deciding what would be sufficient evidence for that purpose, it was held that: "Where property is delivered to a railroad company, to be transported by that and another company over their respective roads to its place of destination, it is enough for the owner, in an action against the company delivering the property to recover damages for negligence, to show that he delivered the property to the first company in good order; and the burden is then cast upon the company delivering the goods thus injured of proving that they were not injured while in its possession, or that they came to its possession thus injured." In the opinion Johnson, J., said: "The general rule is that things once proved to have existed in a particular state are to be presumed to have continued in that state until the contrary is established by evidence, either direct or presumptive. *** Unless this rule is to be applied to goods delivered, to be transported over several connecting railroads, there would be no safety to the owner. It would often be impossible for him to prove at what point or in the hands of which company the injury happened. *** The general rule undoubtedly is that the burden of proof is always upon the party who asserts the existence of any fact which infers legal responsibility; but the exception is equally well established that in every case the onus probandi lies on the party who is interested to support his case by a particular fact, which lies more particularly within his knowledge, or of which he must be supposed to be cognizant."

Counsel for the defendant in error did not controvert the rule that proof of delivery of property in good order to the initial carrier for shipment, and of delivery of it by the final carrier in a damaged condition, will suffice to shift the burden of proof to the defendant, when the last carrier is sued; but they deny that this rule is applicable to a case like the present one, where separate articles were included in the shipment and only some of them were delivered by the final carrier. The authorities have not drawn any distinction as to this rule, between damage and partial loss, and the reasons on which the ruling as to delivery of property by the final carrier in a damaged condition rest, taken as a whole warrant a like ruling as to partial loss of a shipment. In Susong v. Florida Central, etc., R. Co., 115 Ga. 361, 41 S.E. 566, suit was brought against the final carrier of a car load of stock, and the evidence showed that on delivery one horse was missing, and one was injured. The case as to both was treated as resting on the same basis; but the jury found for the defendant, and it was held that there was sufficient evidence to show that the loss and damage did not occur on the line of the last railroad company, and that it was not liable therefor. In the opinion Mr. Justice Cobb said: "The defendant company having received the car load of horses from the Southern Railway Company at Columbia without exception, there was a presumption that they were received as in good order, and so long as this presumption prevailed the onus was upon the defendant to account for the horse which was missing when the car arrived at...