135 Ga. 140 | Ga. | 1910
.The Central of Georgia Bailway Company (hereinafter called the plaintiff) sued the Atlantic Compress Company (hereinafter called the defendant) on an indemnity contract, wherein the latter agreed to indemnify the former against any liability1" to the owner of cotton lost or damaged after it was received by the compress company for compressing and before it was loaded by the compress company for shipment. 125 bales of cotton received by the defendant, from the owner, to be compressed and loaded for the plaintiff, were destroyed by fire after a bill of lading was issued to the owner by the plaintiff in exchange for the receipt given the owner by the defendant, and while it was in the possession of the defendant as the agent of the plaintiff and before it had been compressed. The plaintiff paid the owner the value of the cotton, and sued the defendant to recover the amount thus paid. The case was submitted to the judge on an agreed statement of facts, and to his judgment in favor of the plaintiff for the full amount for which suit was brought the defendant excepted.
1. The defendant contends that the owner of the cotton made an express contract whereby the plaintiff was exempted from liability to the owner for loss of the cotton by fire. The plaintiff makes the contrary contention. Unless the plaintiff was in law liable to pay the owner of the cotton on account of its destruction, the defendant would not be liable to reimburse the plaintiff for the amount so paid by the latter. Civil Code, § 2276, is as follows: “A common carrier can not .limit his legal liability by any notice given, either by publication or by entry on receipts given or tickets sold. He may make an express contract, ancl will then be governed thereby.35 Counsel have argued the case on the theory that the
For would the facts in the record warrant the conclusion that there was an express contract regarding the exemption of the railway company from liability if the cotton was lost by fire, if the compress company’s receipt be treated as having been given by that company as an agent for the railway company. On this theory, it would simply be an exchange of the receipt of one agent of the railway company for a bill of lading from" another agent. The main office of the receipt of-the compress company, on this theory, would be to evidence from one agent of the railway company the number of bales of cotton for which the other agent of
The question of whether- or not a bill of lading evidences a special contract between the carrier and the shipper, within the provisions of the Civil Code, § 2276, so as to make valid a limitation on the legal liability of the carrier contained in the bill of lading, is not determined by the fact that the shipment is tendered by the shipper, and received by the carrier, subject generally to the conditions of the bill of lading which the carrier issues. Every shipment for which a bill of lading is issued to the shipper is subject to the legal conditions of the bill of lading which constitutes the contract of carriage, as well as a'receipt for the goods, and the recipient of the bill of lading impliedly agrees thereto. But a shipment being governed by the ordinary legal conditions of a bill of lading is one thing; and an "express assent by the shipper to a
The agreed statement of the facts recites: “The rate of freight named in the bills of lading was the rate fixed by the railroad commission of Georgia, in effect at the time. . . The classification of the railroad commission of Georgia contains only the one set of rates on cotton in bales, and does not contain any other set of rates on cotton in bales as under ‘ owner’s risk.’ ” It appears from the record that the rate charged the shipper by the railway company was the maximum rate for a shipment of bales of cotton, and no reduced rate was given the shipper in this matter. The record does not show .that the shipper got any reduced rate because the cotton was to be compressed, or that the carrier could or would have refused to carry it if it had not been compressed.
2. The cotton was burned after the bill of lading was issued by the railway company, and the agreed statement of facts shows that the cotton was destroyed “while, in the possession of the Atlantic Compress Company as agent of the railway company, under the provisions of the contract' between the two latter.” It will be seen that the railway company, through its agent, the compress company, was in possession of the cotton when it was destroyed, after the railway company had issued its bill of lading to the shipper. Nothing remained to be done by the shipper before the cotton was to be transported. The record shows that the freight had been prepaid. There was no duty on the shipper to have the cotton compressed and loaded for shipment. The receipt of the compress company stated that it had received from the owner a specified number of bales of cotton “to be compressed and loaded for Central of Georgia.” When this receipt was given the cotton was in the possession of the compress company, subject to whatever disposition the owner saw fit to make of it. The compressing and loading was to be done by the railway company through its agents, the compress company, and under the contract between the two companies the former was to pay the latter for this work. The contract has in it the following statement: “Whereas, during the cotton season of 1905-1906, the railway company will accept un
Judgment affirmed.