Waycross Air Line R. Co. v. Offerman & W.R. Co.
| Decision Date | 06 February 1902 |
| Parties | WAYCROSS AIR LINE R. CO. et al. v. OFFERMAN & W. R. CO. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. A suit on a bond made by a railroad company in a county other than that in which its principal office is located conditioned to pay damages to another railroad company resulting from the delay incident to the prosecution of a writ of error complaining of the refusal to enjoin the latter company from crossing the tracks of the former in still another county, is properly brought in the county where the principal office of the obligor company is located.
2. The provision of the constitution authorizing joint obligors residing in different counties to be sued in the county of the residence of either applies to cases in which one or more joint obligors are railroad companies.
3. Damages which may reasonably be considered as in contemplation of the parties when the contract was made are not too remote to be the subject of a legal recovery.
4. The petition set forth a cause of action, and was not subject to any of the objections set up in the demurrers.
Error from superior court, Ware county; Jos. W. Bennet, Judge.
Action by the Offerman & Western Railroad Company against the Waycross Air Line Railroad Company and others. Judgment for plaintiff, and defendants bring error. Affirmed.
J. L Sweat, for plaintiffs in error.
W. E Kay and Jno. C. McDonald, for defendant in error.
The Offerman & Western Railroad Company brought in the superior court of Ware county an action against the Waycross Air Line Railroad Company and others upon a bond in which the defendant company was principal and the other defendants were securities, alleging in its petition, in substance, as follows: Both plaintiff and the defendant company are corporations created under the laws of Georgia, the latter having its chief office in Ware county. Plaintiff was authorized by its charter to construct a line of railroad from Offerman, in the county of Pierce, to Nicholls, in the county of Coffee, and, in order to reach the place selected as its terminus at Nicholls, was compelled to cross the tracks of the defendant company at that point. Near the terminus was a large sawmill operated by the Southern Pine Company, and the output from its mill was necessarily shipped over the line of the defendant company; and it well knew that if the plaintiff was allowed to cross its tracks and reach the plant of the Southern Pine Company, on account of the community of interest between the stockholders of the latter company and the plaintiff the business of the defendant company would be necessarily lessened; the plaintiff being under agreement with the Southern Pine Company to move the output of its mill when in position to handle the traffic which was also well known to the defendant company. The defendant company, desiring, by reason of the facts above mentioned, to prevent the completion of the plaintiff's road, applied for an injunction to restrain it from prosecuting a proceeding which it had instituted to condemn a right of way across the tracks of the defendant company, and on October 9, 1899, procured a restraining order having that effect. On December 16, 1899, the application for injunction coming on for a hearing, the temporary restraining order was rescinded, and the application for injunction was denied. On December 23d the defendant company had certified a bill of exceptions assigning error upon the refusal of the judge to grant the injunction, and procured an order allowing a supersedeas of the judgment, rescinding the restraining order, and denying the injunction until the final determination of the case in the supreme court, upon condition that a bond should be given, with good security, in the sum of $10,000, conditioned to pay to the plaintiff all of the damages which it should sustain by reason of any delay resulting from the granting of the restraining order and the continuing of the same in force. The bond required by this order was given, a copy of the same being exhibited to the petition. The condition of the bond was to pay to the plaintiff all damages which it "should suffer by reason of any delay entailed upon it by reason of its being restrained from condemning a right of way across the Waycross Air Line Railroad at Nicholls from the time when said crossing could have been condemned up to the time when the said crossing should be actually put in and the road put in operation," in the event the judgment refusing the injunction should be affirmed by the supreme court. On the 27th day of February, 1900, the supreme court affirmed the judgment refusing the injunction. See Waycross Air Line R. Co. v. Offerman & W. R. Co., 109 Ga. 827, 35 S.E. 275. The prosecution of the writ of error in the supreme court delayed the operations of the plaintiff until March 10, 1900, when the damages for crossing the tracks of the defendant company were fixed by assessors, duly tendered and accepted, and the crossing made. In the interval from the 23d of December, 1899, to the 10th of March, 1900, the amount that the plaintiff would have earned per day if it had been allowed to cross the tracks of the defendant company is distinctly alleged, as well as what would have been the expense attendant upon the making of such earnings; and attached to the petition are exhibits showing the quantity of freight which had been shipped by the Southern Pine Company over the line of the defendant company between the dates above mentioned, with the amounts which had been received by the defendant company as freights from such shipments; such exhibits showing that the actual loss sustained by the plaintiff company on account of its inability to reach its terminus and to haul the freights of the Southern Pine Company amounted in the aggregate to more than $2,500. It is alleged that the earnings so lost are not speculative, but certain in character, being amounts which would have been earned by the plaintiff company from hauling the shipments from the sawmill of the Southern Pine Company, which would have been shipped over the line of the plaintiff if its line had been completed, and that the failure of the plaintiff to receive...
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