122 Ga. 646 | Ga. | 1905
When this case was before this court on a former occasion, it was held that the plaintiff’s petition set forth a cause of action, and that the special demurrers urged against it were not well taken. 121 Ga. 48. A trial upon the merits was had in the court below, and resulted in a verdict for $3,005 in favor of the plaintiff. A motion for a new trial, presented in behalf of the defendant railway company, was overruled, and it excepted. By a
The rule of the railroad commission alleged to have been violated prohibits discrimination against shippers, not against commodities; all shippers of a given commodity must be treated alike, but the carrier is not bound to have fixed and unvarying rules applicable alike to each and all kinds of freight, or to any given class of freight when shipped in car-load lots. In the first place, it was optional with the railway company whether or not it would adopt the custom of issuing any through bills of lading or delivering its cars at Augusta to connecting carriers in order that freight might, without reloading on cars furnished by them, be reshipped in bulk. Coles v. Central Railroad Co., 86 Ga. 251. It could, without committing itself to any duty of so handling raw
If, as the evidence discloses, none of the patrons of the defendant company were granted the privilege, at Augusta, of having shipments of cottonseed in its cars turned over to connecting lines for transportation in bulk without reloading, then the plaintiff is not entitled to recover damages because of the railway company’s refusal to accord it this privilege, and the evidence bearing upon the “policy” of the carrier in this regard was not competent for the purpose of sustaining the plaintiff’s contention that the purpose ot the defendant was to drive it out of business. Animus can not be inferred from what one does while acting
What is said above disposes of a number of assignments of error made upon the charge of the court, and also of exceptions taken to the refusal of the court to give in charge pertinent requests which were in accord with the law as herein announced. The only contention of the plaintiff which the evidence tended to sustain was that the defendant had ■wrongfully refused to place a car loaded with cottonseed on the side-track in the rear of plaintiff’s warehouse, and that the purpose of the railway company in refusing to do so was to put the plaintiff to unnecessary expense in reloading at a different place and thus discourage its engaging in the buying and shipping of cottonseed. There was proof of aggravating circumstances attending this discrimination against the plaintiff and iu favor of the local oil mills, and the jury were warranted in reaching the conclusion that the conduct of the railway company was willful and in pursuance of a predetermined plan to throw every obstacle in the way of the plaintiff to prevent shipment of seed into South Carolina. But the case was not fairly or correctly presented to the jury, and a new trial must result.
At the request of plaintiff’s counsel, the court informed the jury that in a decision on one branch of this case, the Supreme Court had settled the law of it in favor of the plaiutiff, holding that if the plaintiff sustained by evidence the allegations of the declaration as to the conduct of the railway company with regard to intrastate business, the plaintiff would be entitled to recover. Complaint is made of this instruction, on the ground that it was prejudicial to the defendant, in that it conveyed the impression to the jury that the Supreme Court had practically decided the case against the defendant, and it had no valid defense. Suffice it to say that the charge was at least irrelevant to any issue before the jury and could serve no' legitimate purpose in their determination of the case. Two other instructions are justly complained of as being inapplicable to the facts of the case, and
“ The assessment of damages is usually governed by the situation or condition of affairs existing at the time the action is brought.” 13 Cyc. 177. The general rule as to the recovery of special damages is, where they are not such as naturally flow from the wrongful act complained of, that “ it is necessary, in order to prevent surprise to the defendant, that the declaration state specifically and in detail the damages sought to be recov
Judgment on main bill of exceptions reversed; on cross-bill affirmed.