179 Ga. 624 | Ga. | 1934
The Court of Appeals certified the following question : “Where after a shipper, who is both the consignor and the consignee, of freight which had been delivered to the carrier for transportation, refuses to accept delivery of the freight from the carrier at the point of destination, or to pay the freight charges, where the freight which was perishable, being a car-load of watermelons, had depreciated in value, due to the delay in the shipment by the fault of the carrier, and the goods which are of some value are afterwards sold by the carrier and the proceeds applied towards a reduction of the freight charges, can the shipper, by afterwards paying to the carrier the balance due on the freight charges, maintain against the carrier an action for the damages either ex delicto, or ex contractu for a breach of the contract of carriage ?”
Under the facts indicated in this question, the shipper would have a right of action for such damages as were caused by the delay in transportation, and would have an election as to whether he would sue as for the commission of a tort or proceed upon the theory of a breach of the contract. Civil Code (1910), § 4407; Bates v. Bigby, 123 Ga. 727 (51 S. E. 717); Macon & Birmingham Railway Co. v. Walton, 127 Ga. 294 (3) (56 S. E. 419); Carr v. Southern Railway Co., 12 Ga. App. 830 (79 S. E. 41); Fain v. Wilkerson, 22 Ga. App. 193 (2) (95 S. E. 752). “Where a carrier fails to deliver goods in a reasonable time, the measure of damages is the difference between the market value at the time and place they should have been delivered and the time of actual delivery.” Civil Code (1910), § 2773. On a similar state of facts it was held, in Wilensky v. Central of Georgia Railway Co., 136 Ga. 889 (72 S. E. 418), that the shipper could not maintain an action ex contractu for the full value of the goods on the theory of the breach of the contract of carriage; and under the reasoning of that decision he could not have sued for such value in an action ex delicto. In such case, where the goods have not been totally destroyed or rendered wholly valueless, the shipper’s remedy is to sue for the actual damage sustained,
Under the question propounded, the shipper’s right of action for the damage caused by the delay is not defeated by the fact that he improperly rejected the shipment and for a time refused to pay the freight. The damage by delay had already accrued at the time of such rejection and refusal, and his failure to accept the shipment and pay the freight was in no wise responsible for such damage. It appears from the question certified that the goods “had depreciated in value, due to the delay in the shipment by the fault of the carrier,” but were still of some value. If the carrier had thus brought about the damage by reason of its own default or breach of contract, it can not escape liability by reason of the subsequent acts of the shipper in rejecting the shipment and in refusing to pay the freight, where the shipper finally paid the freight before suit. In Barrett v. Verdery, 93 Ga. 526 (21 S. E. 64), it was said that “a breach of contract can not be justified by anything the other