Western & A. R. Co v. Branan

• Court: Supreme Court of Georgia
• Writing for the Court: EVANS
• Citation: 123 Ga. 692,51 S.E. 650
• Decision Date: 03 August 1905
• Parties: WESTERN & A. R. CO. v. BRANAN.

123 Ga. 692
51 S.E. 650

WESTERN & A. R. CO.
v.
BRANAN.

Supreme Court of Georgia.

Aug. 3, 1905.

1. Appeal — Review — Objections to Evidence.

To properly bring under review the correctness of a ruling as to the admissibility of evidence which a trial judge declines to exclude, the complaining party must make it appear not only that the evidence was admitted over his objection, but also what grounds of objection he urged at the time the evidence was offered.

2. Warehouseman—Negligence — Improper Storage of Goods—Evidence.

In an action to recover damages of a warehouseman because of an alleged failure on his part to comply with the duties imposed upon him by law with respect to the proper storage and care of goods intrusted to his care, the plaintiff must recover, if at all, upon proof of the specific acts of negligence which he sets forth in his pleadings; and the trial judge should not, in his charge to the jury, give the plaintiff the benefit of any theory of recovery not covered by the allegations of his petition.

3. Same—Issues—Instructions.

If the plaintiff fails to sustain by evidence a charge of negligence made against the defendant, the judge should eliminate this feature of

[51 S.E. 651]

the case when instructing the jury as to the issues upon which they are called to pass, and not leave them to determine whether the defendant was negligent in the respect alleged but not proved.

4. Same—Instructions.

In so far as the written requests to charge presented by the defendant in this case were pertinent and in accord with the law controlling the questions at issue, they were substantially covered by the charge which the judge gave of his own motion.

(Syllabus by the Court.)

Error from City Court of Atlanta; H. M. Reid, Judge.

Action by Charles I. Branan against the Western & Atlantic Railroad Company. Judgment for plaintiff, and defendant brings error. Reversed.

In the latter part of the year 1899 Charles I. Branan entered into an arrangement with the Western & Atlantic Railroad Company whereby it was to transport over its line of railway a quantity of dried fruit which he had purchased in California, and upon the arrival of the fruit in Atlanta to store the same for a few months in a warehouse it had leased in what was known as the "Austell Building." During the month of October five car loads of dried peaches were transported to Atlanta, and stored in the company's warehouse, wherein the fruit remained till the spring of 1900. In the latter part of February Branan went to the warehouse to get samples of the peaches, with the view to placing the fruit on sale in the market. He found the fruit damaged, some of it being dried up and shriveled, and part of it "gummy" and caked together. Between March and June so much of the fruit as was marketable was sold, the price received being far below that which it would have brought if in first-class condition. To recover the loss sustained by reason of the deterioration in the quality of the peaches, Branan brought suit against the railway company, basing his right of recovery upon the following allegations of fact: As an inducement to the plaintiff to have the fruit transported over its line of railway, the company represented that it could store the fruit in Atlanta, where it had ample, safe, and proper warehouse facilities. Upon the arrival of the fruit, it was examined by the plaintiff, and found to be in a good and merchantable condition, and without defect. The warehouse in which the company stored the peaches was not a suitable place for the storage of fruit, in that it was situated in an office building, directly over the engine room, in which a high degree of heat was maintained, the temperature being sometimes as high as 114 degrees. As a result of this excessive heat maintained in the basement, which was communicated to and through the floor of the wareroom at the place where the peaches were stored, they were heated and cooked and caused to sweat and expand. Large pipes, used in conveying heat to the upper floors of this office building, ran through the wareroom and along its walls, increasing the temperature of beat caused by the fires maintained in the basement, and rendering the storeroom an improper and unsafe wareroom for the storage of dried fruit The peaches, which...