11 Ga. App. 837 | Ga. Ct. App. | 1912
Plaintiff in error sued Battle for the amount of freight due on a car-load of live stock which had been delivered to the defendant without payment of the freight charges. The defendant pleaded that the live stock was damaged in transit, and prayed to recoup the amount of the damage. To this plea the plaintiff demurred, contending that the defendant was bound to pay the freight, and that his remedy was to bring a separate action for any damage he had sustained. The demurrer was sustained, and this judgment was reversed by the Court of Appeals, this court holding that under the practice in this State, the.
1. The decision as rendered by the Court of Appeals was binding upon the parties. Its judgment was duly made the judgment of the trial court, and stood thereafter for all purposes just as though the demurrer, had been overruled by the trial court in the first instance and no exception had been taken. The judgment es-topped the plaintiff from again raising the same question in that case. Civil Code (1910), § 5820. The pronouncement by the Supreme Court in another case of a contrary rule could not have the effect, of setting aside the judgment of the Court of Appeals, a court which had complete jurisdiction of the parties and the subject-matter. Such a ruling by the Supreme Court would show that the judgment of the Court of Appeals was erroneous, but it would not authorize a reopening in the trial court of the question of law settled by that judgment.
2. But the decision of the Supreme Court in the Wilensky case does not, we think, go to the extent contended for. All that was held in that ease was that where a consignee refused to pay the freight and accept goods in a damaged condition, he could not-maintain an action against the carrier for .the damages, less the freight, even where the damage exceeded the amount of the transportation charges. That the question dealt with by the Court of Appeals was not involved in the Wilensky case is clear, from the following excerpt from the concurring opinion of Mr. Justice
3. The shipment was made under a special contract of affreightment which exempted the carrier from liability for injuries caused by the vicious propensities of the live stock. It is insisted by the plaintiff in error that the evidence demanded a finding that the injuries were due solely to the vicious nature of the animals. We have read the evidence carefully and we can not assent to this view of it. There was direct testimony in favor of the consignee that the internal injuries received by the live stock were such as could not have 'been caused from fighting, but could, and probably did, result from the negligent and improper handling of the carrier’s train. This testimony made a question for the jury, and there was no abuse of discretion in refusing to disturb their verdict.
Judgment affirmed.