Wilensky v. Central of Georgia Ry. Co.

• Decision Date: 26 September 1911
• Parties: WILENSKY v. CENTRAL OF GEORGIA RY. CO.
• Court: Georgia Supreme Court

72 S.E. 418

136 Ga. 889

WILENSKY v. CENTRAL OF GEORGIA RY. CO.

Supreme Court of Georgia

September 26, 1911

Syllabus by the Court.

A shipper, who is both consignor and consignee, cannot maintain against a carrier an action ex contractu for the value of goods consigned to the carrier for shipment and not delivered, when the carrier tenders the goods at destination in a damaged condition, but refuses to deliver them unless the shipper pays the usual freight charges, notwithstanding the damages to the goods amount to more than the freight charges, and the shipper demands that the damages to the shipment be offset against the freight bill, on the theory that the refusal to deliver under the circumstances is a breach of the contract of carriage.

Certified Question from Court of Appeals.

Action by H. Wilensky against the Central of Georgia Railway Company. Judgment for defendant, and plaintiff brings error. Question certified by Court of Appeals to Supreme Court. Answered in favor of defendant in error.

Jesse M. Wood, for plaintiff in error.

Payne Little & Jones and M. F. Goldstein, for defendant in error.

FISH C.J.

The Court of Appeals has certified to the Supreme Court the following question:

"Can a shipper, who is both consignor and consignee, maintain against a carrier an action ex contractu for the value of goods consigned to the carrier for shipment and not delivered, when the carrier tenders the goods at destination in a damaged condition, but refuses to deliver them unless the shipper pays the usual freight charges notwithstanding the damages to the goods amount to more than the freight charges, and the shipper demands that the damages to the shipment be offset against the freight bill on the theory that the refusal to deliver under the circumstances is a breach of the contract of carriage?"

In Brown, Shipley & Co. v. Clayton, 12 Ga. 564 (6), this court held that "a consignee cannot abandon damaged goods, and thereby discharge the liability of the shipper for freight." The point was directly involved in that case, and was learnedly and exhaustively treated by Nisbet, J., who pronounced the opinion of the court. He said: "It has been much mooted whether, when the goods became greatly deteriorated on the voyage, the consignee is bound to take them and pay the freight, or whether he may not abandon them to the master in discharge of the freight. The better opinion is that he cannot abandon the goods and thereby discharge the freight." The following authorities were cited: 3 Kent's Com. 224, 225; Griswold v. New York Ins. Co., 3 Johns. (N. Y.) 321, 3 Am.Dec. 490, 1 Bell's Com. 570; Jordan v. Warren Ins. Co., 1 Story, 342, 353, 354, Fed. Cas. No. 7,524; Pothier Charte Partic. No. 59. I quote further extracts from the opinion as follows: "The *** law allows to the carrier his freight when the goods are delivered, irrespective of damage. *** If the carrier and the owners [of the ship] are liable for damage, the shipper and his consignee must resort to their action to recover them. *** This obligation to pay freight grows out of the contract. It is entire, and cannot be apportioned. Upon a bill of lading like this, in which freight is agreed to be paid upon delivery, a delivery is a condition precedent to a right to it, and upon delivery or tender the freight is earned, and the shipper is liable for it. The carrier may retain the goods if it is not paid, or he may waive that and rely upon the liability of both the consignee and the shipper (if the shipper is also the owner) for his freight."

It is the contention of counsel for the shipper, who is also the owner, in the case now under consideration, that the doctrine announced in the case in 12 Ga. 564, above cited, was overturned by the adoption by the General Assembly of Civil Code 1895, § 2287, which is as follows: "The carrier has a lien on the goods for his freight, and may retain possession until it is paid, unless this right is waived by special contract or actual delivery. This lien exists only when the carrier has complied with his contract as to transportation. " The decision in Brown v. Clayton, 12 Ga. 564, was rendered in 1853, prior to the adoption of any Civil Code in this state. By an act of the General Assembly approved December 9, 1858, provision was made for the election of three commissioners "to prepare for the people of Georgia a Code, which should, as near as practicable, embrace in a condensed form the laws of Georgia, whether derived from the common law, the Constitution, the statutes of the state, the decisions of the Supreme Court, or the statutes of England, of force in this state." Laws 1858, p. 95. The Code prepared by the commissioners was adopted by an act of the General Assembly approved December 19, 1860 (Laws 1860, p. 24); but, by an act of 1861 (Laws 1861, p. 28) it did not go into effect until January 1, 1863. That Code contained a section (section 2049) in the identical language of section 2287 of the Code of 1895, and each of the intermediate Codes has contained a section with similar provisions. Section 2741 of the Civil Code of 1910 is the same as section 2287 of the Civil Code of 1895. This section did not have its origin in a statute of this state. It appears for the first time in the Code of 1863. It has, however, all the binding effect of an original act of the Legislature, because of the adoption by the Legislature of the Code wherein it appears. Central Ry. Co. v. State, 104 Ga. 831, 31 S.E. 531, 42 L.R.A. 518. It has been several times held by this court that a section of the Code, not of original statutory origin, would be construed merely as a codification of the existing law, unless there be words in the section which manifestly demand a construction which would change the rule in force at the time the Code was adopted. Brandon v. Pritchett, 126 Ga. 286, 55 S.E. 241; Mitchell v. Georgia & Alabama Ry., 111 Ga. 760, 36 S.E. 971, 51 L.R.A. 622, and cases cited.

At the time of the adoption of the Code of 1863, the law on the subject now under discussion was "that a consignee cannot abandon damaged goods, and thereby discharge the liability of the shipper for freight," as has been decided by the Supreme Court in Brown v. Clayton, 12 Ga. 564, and one of the sources from which the commissioners appointed to prepare a code of the laws of this state were to seek the existing law was "the decisions of the Supreme Court." Are there any words in the section of the Code now under consideration which manifestly demand the conclusion that the codifiers intended to change the law as it previously existed? There is nothing in the section by which it can be contended that the doctrine announced in 12 Ga. 564, was changed, unless it be the following language: "This lien exists only when the carrier has complied with his contract as to transportation." It certainly cannot be successfully urged that it was ever at any time held that the carrier could not retain goods transported by it until the usual freight charges thereon should be paid. It is contended, in effect, that as the duty of the common carrier is to transport goods received for carriage safely and within a reasonable time, and as this duty, being imposed by law, becomes a part of the contract of carriage, even though not expressed therein, it follows that, if the goods have been damaged by the fault of the carrier before reaching their destination, then the carrier has not complied with his contract as to transportation, and no lien exists on the goods for freight. If this be true, then the carrier would have no lien for freight on the goods if they should be injured in transportation by the carrier's fault to any appreciable extent, as the contract to safely transport, in such a case, would not have been complied with. Now, how can it be logically contended that a carrier has a lien on goods transported which have been damaged by the carrier's fault in transit, when the freight on the goods amounts to more than the damage, but has no lien where the damage amounts to more than the freight? Could it be successfully urged, where the freight amounted to $100 and the damage by the carrier to the goods amounted to $99, that the carrier would have a lien for the entire freight, but, if the damage amounted to $101, then no lien would exist? As was ruled in Brown v. Clayton, 12 Ga. 575, 576: When the goods become greatly deteriorated on the voyage, the consignee is bound to take them and to pay the freight. "He cannot abandon the goods and thereby discharge the freight. *** This obligation to pay freight grows out of the contract. It is entire, and cannot be apportioned."

Code 1863, § 2045, declared that "the common carrier is bound not only for the safe transportation and delivery of goods but also that the same be done without unreasonable delay"; and this section has been embodied in all the subsequent Codes. Therefore it is as much the duty of such carrier to transport goods without unreasonable delay as it is to safely transport them, and, as we have said, both of these duties being imposed by law, they became by implication a part of the contract of carriage. Civil Code 1895, § 2319 (Civil Code 1910, § 2773), is in this language: "Where a carrier fails to deliver goods in a reasonable time, the measure of damages is the difference between the market value at the time and place they should have been delivered and the time of actual delivery." This section is a codification of the rulings of this court in Columbus & Western Railway v. Flournoy, 75 Ga. 745, Atlanta, etc., R. Co. v. Texas Grate Co., 81 Ga. 602, 9 S.E. 600, and East Tennessee R. Co. v. Johnson, 85 Ga. 497, 11 S.E. 809, wherein it was decided what damages are recoverable against a common carrier for the breach...