37 Ga. App. 729 | Ga. Ct. App. | 1928
(After stating the foregoing facts.) Counsel on each side have submitted a number of authorities as supporting their respective contentions. No case has been brought to our attention, however, which seems to be directly in point, and we will decide the case before us upon its own particular facts, in the light of what we deem to be general and unquestioned principles of law.
The right to divert a shipment of goods which are being transported by a common carrier is in the true owner, whether he be the consignor or the consignee, and the right may bé exercised although the goods have passed into the hands of a connecting carrier. While it is true that in the absence of knowledge, either actual or constructive, to the contrary, the consignee may be pre
Did the defendant, Johnson-Battle Lumber Company, carry the burden of proving these facts in the present case? The fact of the agency is conceded. The question is, did the carrier have knowledge of it at the time it diverted the shipment on the defendant’s order? While there was no direct evidence upon the point, circumstantial evidence will do, if it is sufficient for the purpose. From what we have said, the carrier must have known
Cited by counsel for plaintiff in error: C. C. C. & St. L. Ry. Co. v. So. Coal Co., 147 Tenn. 433 (248 S. W. 297); Portland Mills Co. v. British &c. Ins. Co., 130 Fed. 860 (65 C. C. A. 344); N. Y. &c. R. Co. v. York, 215 Mass. 36 (102 N. E. 366); B. & O. R. Co. v. New Albany Box Co., 48 Ind. App. 647 (94 N. E. 906); Seaboard Air-Line Ry. Co. v. Montgomery, 28 Ga. App. 639 (112 S. E. 652); N. Y. C. R. Co. v. Platt Coal Co., 236 Ill. App. 150; Pere Marquette R. Co. v. Am. Coal Co., 239 Ill. App. 139; Case v. Union Pac. R. Co., 119 Kan. 706 (241 Pac. 693); W. & A. R. Co. v. Underwood (D. C.), 281 Fed. 891; 10 C. J. 445, 447, § 701.
Cited by counsel for defendant in error: Davis v. City Fuel Co., 157 Ark. 455 (248 S. W. 572); St. L. Ry. Co. v. Browne Grain Co. (Tex. Civ. App.), 166 S. W. 40; Wallingford v. Bush, 255 Fed. 949 (167 C. C. A. 241); 10 C. J. 446;-2 Hutch. Carriers, § 807-8; 4 Elliott, Railroads, § 1559.
Judgment affirmed.