139 Ga. 410 | Ga. | 1913
McKenzie and Towers sued the Alabama Great Southern Railroad Company to recover damages resulting from a failure to promptly transport a car-load of peaches from Fort Payne, Alabama, to Providence, Rhode Island. It was alleged that the defendant was. negligent in that it failed to transport the peaches within a reasonable time, and to keep the car properly refrigerated. "When the peaches were tendered to the consignee he refused to accept them, because of their damaged condition. They were afterwards sold by the railroad company, and the net proceeds were insufficient to pay the freight charges. The jury returned a verdict for the plaintiffs. A motion for new trial was made by the defendant, and was overruled.
The evidence discloses that no effort was made by the carrier to notify the shipper that the consignee had rejected the peaches. Of his own motion the carrier sold the peaches two or three days after their rejection by the consignee, and the net. amount of the sale was $227.07, which was insufficient to pay the freight charges. In this day of progress, when the whole country is traversed by a network of wires, we can not assume that instant telegraphic communication with the shipper was impossible. The burden was on the carrier to show that it was impossible or impracticable to notify the shipper, and the testimony fails to disclose that any effort was made by the carrier to notify the shipper that the peaches had been refused by the consignee. A sale under these circumstances would amount to a conversion; and if the carrier’s negligence was responsible for the deteriorated condition, he would be liable for the market value of the peaches. The measure of damages laid down by the court was more favorable to the carrier than he was entitled to have presented; and as the market value of the peaches was proved to be much in excess of the verdict, the instruction of the court on the subject, though not altogether accurate, should not cause a new trial.
We have before us section 2758 of the Civil Code, which provides ' that .whenever the property transported is fruit, and it is not delivered, the same may be sold at public outcry on 24 hours notice of sale. -Even if this section be applicable to a shipment between points located in other States, or to any interstate shipment, the range of the evidence does not bring the case within its terms.
Judgment affirmed.