21 Ga. App. 209 | Ga. Ct. App. | 1917
The Nellwood Lumber Company brought suit against the Atlantic Coast Line Bailroad Company in the city court of Bichmond county, requiring the defendant to answer in an action for damages, for that the defendant had damaged the plaintiff in the sum of $89.30, by reason of the following facts: That during the month of December, 1914, petitioner was the owner of certain iron rails, located at Bobbins, S. 0., which it had contracted to sell to the Barnwell Lumber Company; that on December 18, 1914, B. H. Youngblood, an agent of the plaintiff, was sent to Bobbins, S. C., to measure said iron rails, and, upon the execution of said contract by the defendant, to superintend the shipment of the rails to the Barnwell Lumber Company; that, in accordance with the terms of the contract, the rails were loaded by agents of the Barnwell Lumber Company, under the superintendence of and in the presence of B. H. Youngblood, — plaintiffs agent; that, when the rails were loaded on ’the defendant company’s cars, plaintiffs agent notified defendant’s depot agent, at Bobbins, S. C., that the rails being loaded by the Barnwell Lumber Company were the property of the Nellwood Lumber Company of Augusta, Ga., and further notified defendant’s agent not to permit said car of rails to go forward until released by plaintiff, who was the owner of said rails; that on December 19, 1914, plaintiff’s agent, Youngblood, reported his action to the plaintiff company, who likewise notified defendant’s depot agent at Bobbins, S. C., that the Nellwood Lumber Company was the true owner of said rails, and instructed that the rails not be shipped, until released by them; that notwithstanding such verbal and written notice, the defendant delivered possession of said rails to the Barnwell Lumber Company; that after defendant surrendered
The defendant filed a plea to the jurisdiction of the city court of Bichmond county, and, subject to that plea, demurred, on the grounds that the petition did not set out a cause of action, and that the damages claimed were too remote. The plea to the jurisdiction and the demurrer were overruled, and the defendant duly filed exceptions pendente lite. The defendant answered the petition, denying the allegations therein, and pleading that the plairn tiff’s written notification was not received until after the two cars of rails had been placed in the possession of the Barnwell Lumber Company by the plaintiff’s agent; that the Barnwell Lumber Company was apparently the owner of the rails, and that the railroad company did not have sufficient authority to hold the rails after possession had been given to the Barnwell Lumber Company and a bill of lading issued to the latter company.
The case went to the jury and a verdict in favor of the plaintiff, for $101.80, was returned, and judgment was duly entered for that amount. The defendant filed a motion in arrest of judgment, upon the ground that the court was without power to render the judgment prayed for, and that .this defect was apparent in the face of the record. The defendant’s motion for a new trial was overruled, and it sued out its bill of exceptions to this court, assigning error upon various rulings of the trial court.
1. Considering first the plea to the jurisdiction, we must make reference to the act of 1881 (Acts of 1881, p. 574), which fixes the jurisdiction of the city court of Bichmond county as follows: “That a city court be and the same is hereby created' and established in the city of Augusta, with territorial jurisdiction over the whole county of Bichmond, concurrent with the jurisdiction of the superior court to try and dispose of all civil eases, of whatsoever nature, above the jurisdiction- of justices of the peace and not exceeding $5,000 in the amount involved, exclusive' of interest, except in cases of divorce, cases respecting title to land and equitj eases.” It will be observed that the jurisdiction of the city court
The court properly overruled the demurrer. We do not deem it necessary to argue the points raised thereby, since, in our opinion, the plaintiff’s petition clearly set out a cause of action arising from a conversion of the plaintiff’s property, and the damages therein alleged were not too remo'te to be the basis of the suit.
2. The ruling stated in the second headnote needs no elaboration.
3. Complaint is made that the following excerpt from the charge of the court was error: “If, however, after a railroad company issues a -bill of lading, they’have information that the party delivering the goods to the railroad is not the true owner of the goods, and the true owner instructs the railroad not to deliver the goods to the person that brought them to the road, and the r.ail-road disregards the instructions of the true owner and ships the goods, the railroad acts at its own peril.” The plaintiff in error insists that this charge was error, for the reason-that the Nellwood Lumber Company, by virtue of a contract of sale, had put the Barnwell Lumber Company in possession of the rails, and allowed the latter company to load them on the defendant’s ears; that the defendant was obliged to issue its bill of lading on demand of the Barnwell Lumber Company; that it could not prevent the shipment of the rails because the Barnwell Lumber Company failed to carry out its contract with the Nellwood Lumber Company; and that the verbal and written notification was insufficient to stop the shipment. It will be observed that the plaintiff in error takes the position that the rails had already been delivered to or were in the lawful possession of the Barnwell Lumber Company,•but reference to the brief of evidence shows that this was in dispute. It was the main contention of the railroad company, but was specifically denied by the plaintiff. The case of Georgia Railroad Co. v. Haas, 127 Ga. 187 (4) (56 S. E. 313, 119 Am. St. R. 327, 9 Ann. Cas. 677), is, in our opinion, authority for the charge here excepted to. In the fourth headnote of that case we find the following ruling: “If a person not the owner of property or en
4. Further complaint is made because the court refused to comply with requests to charge the jury as follows: “(1) If the Nellwood Lumber Company permitted the iron rails in question to be delivered to defendant by the Barnwell Lumber Company, as shipper, the bill of lading should have been issued to the Barnwell Lumber Company, and if it was so issued, the common carrier was’ bound to look to the Barnwell Lumber Company as owner. (2) I charge you, gentlemen of the jury, further that when the agent of the Nellwood Lumber Company left on the Saturday afternoon in question, after permitting the Barnwell Lumber Company to load the iron rails-on the defendant company’s cars, that ordinary care required that he should have demanded for the Nellwood Lumber Company a bill of lading, or receipt for these rails, if he wished the railroad company to consider the Nellwood Lumber Company the owner thereof. If plaintiff’s agent left Bobbins without having caused a bill of lading to be issued to the Nellwood Lumber Company by defendant for said iron rails, the railroad company was justified in issuing said bill of lading to the Barnwell Lumber Company. (3) Under the law, attorney’s, fees and expenses of litigation are not recoverable as damages; it is contrary to the policy of our law to permit the plaintiff to recover attorney’s fees as part of the damages claimed.” Under the rulings made in the Shellnut case, supra, and the Haas case, supra, the first request was properly denied, since it does not embody a correct statement of the law. The second request to charge was likewise not a correct statement of the law. It will be observed that the court was asked to charge that ordinary care required that the agent of the Nellwood Lumber Company should have demanded for that company a bill of lading, or receipt for the rails,1 if he desired the railroad company to consider his company the true owner thereof. It is obvious that had the judge charged as requested he would have invaded the province of the jury, since it is a well settled rule that a court is not permitted
5. Error is assigned upon the overruling of the motion in arrest of judgment. The plaintiff in error contends that the verdict was excessive. The verdict was for $101.80, while the suit was only for $89.30. It is apparent that the jury, acting in accordance with the charge of the court (which is not complained of), merely added two years interest to the sum sued for. However, we are constrained to hold the verdict excessive, since the plaintiff’s petition sought only a recovery of $89.30 principal, without an}'’ mention of interest, and the verdict actually returned included interest amounting to $12.46, and was to that extent in excess of the amount claimed. A new trial will be refused, however, if the defendant in error will write off $12.46 — the interest calculated by the jury — at the time of the entry of the remittitur as the
Judgment affirmed, on condition.