William Fine & Bro. v. Southern Exp. Co.
| Decision Date | 19 December 1911 |
| Docket Number | 3,224. |
| Parties | WILLIAM FINE & BRO. v. SOUTHERN EXPRESS CO. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
The action was for breach of contract, and the justice's court had jurisdiction. If there is doubt as to the form of a suit, the construction favorable to the jurisdiction should be adopted, but, under the allegations of the petition here there is no doubt that the suit was on the contract of carriage, for breach thereof, and consequent damage.
A justice of the peace should not direct a verdict.
Where a common carrier has breached his contract by failure to deliver the goods intrusted to him, and admits that they were lost while in his possession, he is not entitled to be paid the freight, or to have the amount of the freight deducted from the verdict for the value of the lost goods.
The shipper neither, by omission nor commission, perpetrated nor attempted to perpetrate a fraud upon the carrier, and the undisputed evidence proved that he was entitled to recover the value of his goods, because of the breach of the contract by the carrier.
(Additional Syllabus by Editorial Staff.)
Articles of jewelry have been generally defined by the courts to be such articles as are made of precious metal, silver, gold diamonds, sapphires, rubies, pearls, etc. (citing 4 Words & Phrases, 3811).
Error from Superior Court, Fulton County; W. D. Ellis, Judge.
Action by William Fine & Bro., against the Southern Express Company. Judgment for defendant, and plaintiff brings error. Reversed.
C. B Rosser, Jr., for plaintiff in error.
Robert C. and Philip H. Alston, for defendant in error.
William Fine & Bro. (engaged in the novelty jewelry business in Atlanta, Ga., and Chattanooga, Tenn., under the name of the Radius Jewelry Company) delivered a package containing 145 articles of their novelty jewelry to the Southern Express Company in Atlanta for transportation and delivery to the Radius Jewelry Company in Chattanooga, under a contract made with the express company. The package was lost by the express company, and the shipper brought suit against it in a justice's court to recover the value of the contents of the package. The justice rendered a judgment for the defendant, and, on appeal to a jury in the justice's court, a verdict was returned for the plaintiffs for the proved value of the contents of the package-- $46.20--with interest. The case was taken by certiorari to the superior court, which, on the hearing, sustained the certiorari, and set aside the verdict and the judgment rendered thereon, and entered up a final judgment in favor of the express company; and to this the plaintiffs excepted.
On the trial in the justice's court the plaintiffs proved the contract of shipment made with the express company, and the delivery to it of the package containing the 145 articles specified, to be transported to Chattanooga and there delivered to the Radius Company, proved the value of the contents of the package, and proved that the package was lost while in the possession of the express company. Indeed, there was no substantial controversy on the evidence, and it would seem that the verdict in behalf of the plaintiffs was demanded. Counsel for the express company submits to this court four legal reasons, covered by the petition for certiorari, in support of the contention that the verdict against the express company was contrary to law: (1) That the justice's court had no jurisdiction of the subject-matter of the suit, the same sounding in trover, and not in contract; (2) that, the proposition involved being solely one of law, the magistrate, on the hearing of the appeal in the justice's court, should have directed a verdict in favor of the defendant; (3) that, the freight charge of 25 cents never having been paid, the verdict for the full amount of the goods, to wit, $46.20, was without evidence to support it; (4) that, this being a shipment of jewelry, and the nature of the shipment not being disclosed to the express company, and it being offered through the ordinary freight channels instead of the money department, the shipper committed a constructive fraud upon the Southern Express Company, which would prevent them from recovering.
We do not know upon which one of these grounds the learned judge of the superior court sustained the certiorari and entered up final judgment in favor of the express company. It is stated in the argument, and in the brief of counsel submitted to this court, that he did so on the ground that the suit was ex delicto, and the justice's court was without jurisdiction. The judgment of the superior court, however, is general, and, if for any reason it is right, it should be affirmed without reference to the ground upon which it was based. We cannot agree with the judge of the superior court in his conclusion upon any ground that we have been able to find in the record. On the contrary, we are clear that under the undisputed evidence and the well-established principles of law applicable thereto the Southern Express Company was liable to the plaintiffs for the value of the contents of the package, and that the verdict in their favor was right. Indeed, the reasons in support of the judgment of the superior court are in our opinion so manifestly without merit as hardly to justify any extended consideration. But, since they are made and earnestly insisted upon, we will briefly consider them.
1. It is well settled that in a justice's court technical pleading is not required. In the present case, however, the plaintiffs, by formal petition, set forth their cause of action. An examination of this petition shows that in form and substance it is a suit on a contract, alleging a breach of that contract, and suing for the value of the goods which were to be delivered by the defendant under the contract, and which were lost to the plaintiffs by reason of defendant's breach of contract, and that the plaintiffs expressly waive any tort. The only ground upon which the defendant supports its view that the case was one ex delicto is the allegation in the petition that the defendant "failed, neglected, and refused to deliver said package to the consignee as aforesaid, and has likewise failed and refused to pay the value thereof to plaintiffs, although often requested so to do." It is insisted that this is a direct charge of a conversion of the property intrusted to the Southern Express Company, and therefore that the suit was in the nature of trover. We do not agree with this construction of this part of the petition. The language used is, in our opinion, clearly susceptible of the construction that it charges a breach of contract. If there was any doubt as to the construction of the petition, it was the duty of the justice's court to adopt the construction which would hold the action and not defeat it. This rule applies especially to suits in a justice's court, and especially where the question of jurisdiction is not raised by demurrer. Payton v. Gulf Line Ry. Co., 4 Ga.App. 762, 62 S.E 469; Central Railroad Co. v. Pickett & Blair, 87 Ga. 734, 13...
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