33 Ga. App. 209 | Ga. Ct. App. | 1924
Lead Opinion
1. “The consignee of property delivered by another to a common carrier for shipment is presumed to be the owner, and presumptively a right of action exists in his favor for any injury or damage to the property in transit; but the presumption that the consignee is the owner may be rebutted, and where it appears that the consignee has no general or special property in the goods shipped, and incurs no risk in their being transported, he can not maintain an action ex delicto for the loss of, or for any damage to the property. . . Where the consignor makes a contract with a common carrier for the shipment of goods which belong to. the consignee, the former may recover in assumpsit for a breach of the contract, and the latter may recover for any loss or any damage to the property, and a recovery by either of the full amount of damage caused by the carrier would bar a recovery of such damage by the other. . . There are many cases holding that though the consignee may not be the real owner, if he has a special interest in the property shipped, he may maintain an action for the loss, or for any damage to such property in transit, and in such action may have a recovery of the full value of the property where lost, or full amount of damages to the property where it is damaged. . . ‘The ownership need not be extensive, and an agent, factor, broker, bailee, or other person havingrrights in the property to be protected, may maintain an action, and recover both for himself and the general owner.'" Southern Ry. Co. v. Miko, 136 Ga. 272, 273, 274 (71 S. E. 241). In the instant case, while the consignor had reserved title to the injured property rinder retention-of-title notes, the consignee vendee, having paid to the consignor vendor $200 of the purchase-price of the machinery, of the value of $600 at the time and place of injury, had such a special property and interest as would sustain a right of action against the carrier for its injury. See Civil Code (1910), § 4482; Brown Shoe Co. v. Chattahoochee Lumber Co., 121 Ga. 809 (3) (49 S. E. 839); Emanuel County v. Thompson, 3 Ga. App. 225 (59 S. E. 603). See also Ryals v. Seaboard Air-Line Ry. Co., 158 Ga. 303, 32 Ga. App. 453
2. The plaintiff consignee sued in tort for the recovery both of an item of expense, amounting to $6, incurred on account of damage to the axle of a locomotive, alleged to have been damaged by the defendant’s negligence as a common carrier while the machinery was in transit loaded on a flat ear, and on account of alleged damage to the property after its arrival at destination and before unloading. The trial court granted a nonsuit, to which the plaintiff excepts. There is no cross-bill of exceptions by the defendant carrier to the order overruling its demurrer to the petition, and no question is raised as to any misjoinder; and that order is the law of the case. The jury being authorized to find, under the presumption against the common carrier, that the axle was broken by its negligence while the property was in transit, it was error as to this item of damage to grant a nonsuit.
(a) “In all cases necessary expenses consequent upon the injury done are a legitimate item in the estimate of damages.” Civil Code (1910), § 4505. It is unnecessary to show that an item of such expenses has been actually paid. It is enough that an actual legal liability therefor has been incurred. Murphey v. Northeastern Construction Co., 31 Ga. App. 715 (3); 17 C. J. 805, 806, 803. In the instant case testimony of the plaintiff that the consignor “charged” the plaintiff “six dollars for repairing the axle,” and that, while this amount was yet unpaid, “I have got to pay him,” was sufficient to authorize a recovery therefor against the defendant.
3. “A warehouseman is a depositary for hire, and is bound only for ordinary diligence.” Civil Code (1910), § 3503. It is the statutory rule in this State that “in all cases of bailment after proof of loss, the burden of proof is on the bailee to show proper diligence.” Civil Code, § 3469. The word “loss,” in this section, has been construed to-mean injury or damage to the goods as well as their- destruction or disappearance. Richmond & Danville R. Co. v. White, 88 Ga. 805, 813 (15 S. E. 802). The State statutory rule as to the burden of proof in bailments is applicable to intrastate shipments such as in the instant case, although, under the ruling of the United States Supreme Court, a different rule prevails as to interstate shipments. Central of Ga. Ry. Co. v. Owens, 28 Ga. App. 140, 142, 143 (110 S. E. 339); Davis v. Pearlman, 29 Ga. App. 12 (1) (113 S. E. 44); So. Ry. Co. v. Prescott, 240 U. S. 362 (36 Sup. Ct. 469, 60 L. ed. 836).
(a) “Where goods are shipped by railway, and arrive at their destination
4. The court did not err in excluding a letter offered by the plaintiff, purporting to be signed by a person as “freight-claim adjuster” after the alleged injuries, and containing a statement to the effect that the defendant had caused the fall of the machinery from the ear; there being no evidence to identify the person writing the letter as an authorized agent of the defendant, or showing that it was written in the scope of his duties as such an agent. Torbet v. Cherokee Ins. Co., 141 Ga. 773 (2) (82 S. E. 134); Amicacola Marble Co. v. Coker, 111 Ga. 872 (36 S. E. 950); Wilcox v. Hall, 53 Ga. 635 (4); Atlas Assurance Co. v. Kettles, 144 Ga. 306 (4) (87 S. E. 1).
Judgment reversed;
Rehearing
ON MOTION EOR REHEARING.
1. The 1st division of the original syllabus has been slightly amended so as to avoid any possible construction that this court intended to rule that the plaintiff, as owner of a special property and interest in the subject-matter, if he should recover under the rules stated “both for himself and the general owner,” could recover the full market value at the time and place of injury, without any deduction for whatever amount would be chargeable against the consignor-vendor’s interest. Such interest of the holder of the retention-of-title notes would'be chargeable with such amount as the holder realized upon the debt in the public sale of the property under the notes; and from any amount which the jury might find for the jflaintiff, as the market value of the interests both of himself and of the vendor, there should be deducted the amount which may be shown to have been received by the vendor at such public sale.
2. In its motion for rehearing the defendant carrier contends, that, in the ruling in the second division of the syllabus, to the effect that the trial court erred in granting a nonsuit as to the
. 3. It is further contended that, as to the injury to the machinery while on the defendant’s side-track, the evidence conclusively showed that the- defendant was no more than a naked depositary or gratuitous bailee, liable only for gross neglect; that there was therefore no presumption against the defendant as a warehouseman; that “the court, in holding that defendant would be liable by reason of the fact that the freight agent agreed to look out for the freight so that it would not be. damaged by being struck by trains on the siding, overlooked the cases of Ga. R. &c. Co. v. Thompson, 86 Ga. 327 (13 S. E. 561), and So. Ry. Co. v. Rosenheim, 1 Ga. App. 766 (58 S. E. 81); and that such a promise was a mere personal undertaking by the agent. In the latter of these cases it was held that “One who, having been a passenger, arrives with his baggage at destination, surrenders his checks, opens up the trunks in the baggage-room, and afterwards leaves the trunks in the baggage-room by permission of the baggage clerk, upon a statement that he will be going off next day and will then recheck them, can not hold the
While the question is not without difficulty, under the particular facts of this case as set forth in the original syllabus and the statement of facts, the record not disclosing that the plaintiff consignee had, with full knowledge of the break and the result to the axle of attempting to move the machinery, given a receipt to the carrier for the property as in good order, and not demanding a finding that the plaintiff had taken it into his possession with the duty of removal from the car and side-track, and that delivery had thus been properly and fully accomplished by the carrier, the court adheres to its original judgment and syllabus, that, as to the damage claimed from the knocking of the machinery from the car on the defendant’s side-track, the grant of a nonsuit was erroneous.
Motion for rehearing denied.