41 Ga. App. 794 | Ga. Ct. App. | 1930
George P. Green & Company sued Central of Georgia Bailway Company for failure to furnish promptly a car requested by the plaintiff for a shipment of peaches. The defendant filed a general and special demurrer, which the court overruled. At the trial the plaintiff amended the petition, after which the defendant made a motion to dismiss, which was also overruled. After verdict
The defendant demurred on the ground that the petition set forth no cause of action; that the allegations as to the ordering of the car were vague, indefinite, and uncertain, in that it was not alleged whether the order was in writing, and, if so, upon whom the same was served; that no legal measure of damages was set forth in the petition; and that the petition showed that the defendant had complied with its every duty to the plaintiff, by furnishing a car bn June 22- as ordered, and that the averment as to the unsuitability of the car was a mere conclusion of the pleader, unsupported by the facts alleged. The plaintiff amended the petition by alleging that the order for the car was in writing and was served upon C. H. Sammons, agent for the railway company at Fort Valley, Georgia; and by further alleging in effect that' 50c. per bushel represented the difference between “the contract price” on June 22 and the market price of peaches of the same variety, condition, and character on June 23. The motion to dismiss presented the contention that the petition was not maintainable, be
The motion for a new trial was amended by the addition of various special grounds, the nature of which will hereinafter appear.
The plaintiff in error makes the contention, both under the general demurrer and the motion to dismiss, that the petition shows that the plaintiff was seeking to recover upon a special contract for the placing of the car at a specified hour, contrary to the acts of Congress regulating interstate commerce. It is also insisted that if the suit is based on the Georgia statute as to furnishing cars (Civil Code of 1910, §§ 2774, 2775), it is defective for other reasons pointed out. It is settled law that the defendant could not have made a valid contract to furnish to the plaintiff at a certain time a car to be sued for an interstate shipment (Davis v. Cornwell, 264 U. S. 560, 44 Sup. Ct. 410, 68 L. ed. 848); but we can not construe the action as proceeding upon any such theory. Nor does it appear that the plaintiff is relying upon the Georgia act. Properly construed, the action is a suit to recover damages for a breach of the common-law duty of the defendant as a common carrier to furnish cars for the transportation of freight, within a reasonable time after notice. Southern Railway Co. v. Moore, 133 Ga. 806 (67 S. E. 85, 26 L. R. A. (N. S.) 851); Youmans v. Georgia & Florida Ry. Co., 142 Ga. 781 (83 S. E. 790); Civil Code (1910), § 2729. The petition nowhere mentions the Georgia statute, nor anything in the nature of a special contract (see Atlantic Coast Line R. Co. v. Wells, 130 Ga. 55, 60 S. E. 170); and the allegations taken as a whole are more appropriate to a suit for a breach of the carrier’s common-law duty in regard to such matter. See, in this connection, 10 C. J. 75. It is said, however, that the petition is fatally defective as a suit upon the common-law liability, because there is no allegation that the goods were offered for transportation.
A final question on the pleadings is in relation to the measure of damages. The third ground of the demurrer was that "no legal measure of damages is set forth in said petition.” In a case of this sort, the correct measure of damage is ordinarily "the difference in the market value of the fruit at the point of shipment at the time the cars should have been furnished, and at the time they were actually furnished.” Chattanooga Southern R. Co. v. Thompson, 133 Ga. 127 (4) (65 S. E. 285). It is observed that the ground of the demurrer as to this matter was aimed at the petition as a whole; and in view of this fact, it can be treated only as a general demurrer. Southern Ry. Co. v. Chambers, 126 Ga. 404 (4), 409 (55 S. E. 37, 7 L. R. A. (N. S.) 926); Douglas, Augusta & Gulf Ry. Co. v. Swindle, 2 Ga. App. 550 (4), 556 (59 S. E. 600). We tliink that as against a general demurrer the petition did not wholly fail to allege any recoverable damages. It is averred that the plaintiff had sold the peaches for $1.75 per bushel, provided they were shipped on the afternoon run of June 22, but that they were not so shipped, and that the plaintiff sold them on the following day for $1.25 per bushel, which was the best price obtainable at that time. It is alleged that in the meantime the market had declined and that the loss of 50c. per bushel was due entirely to the failure of the defendant to furnish the car as requested. True, the allegation that the plaintiff had sold the peaches on June 22 at the price stated did not establish the market value as of that time, but as against general demurrer it is sufficiently shown that the price which the plaintiff did receive after the car was furnished was the market value; and if the market had "declined” to this price, it
Of course, the petition should have been dismissed on general demurrer if it had shown no damage whatever traceable to the defendant’s act; but no such penalty should be applied for a simple failure to state the damage by the proper measure, — in which case the petition should be dismissed only in the event the defect is pointed out by timely special demurrer and the plaintiff then fails to correct it after opportunity to do so. Ford v. Fargason, 120 Ga. 708 (6) (48 S. E. 180); City Council of Augusta v. Lamar, 37 Ga. App. 418 (5) (140 S. E. 763). Moreover, the petition would seem'to disclose a purpose on the part of the pleader to claim the proper measure of damages, although in the amendment it was stated in effect that the 50c per bushel represented the difference between the “contract price” for the peaches on June 22 and the market price on June 23. Apparently the pleader was intending to say that the price at which he had sold the peaches for June 22 delivery, referred to as the “contract price,” was in fact the market price as of that date, and that the same was true also of the price at which he sold the peaches on the following day. Though in respect of the measure of damages the petition was imperfectly and obscurely drawn, we can not say that it should have been unconditionally dismissed, as on general demurrer, because of such defect. The above will dispose of all questions in relation to the pleadings that were discussed or mentioned in the brief of counsel for the plaintiff in error.
In one of the grounds of the motion for a new trial the defendant complains that the court erred in refusing to instruct the jury, that, under the provisions of the interstate-commerce act, a carrier is prohibited from taking orders for the placement of cars at any specified hour; and in another ground it is insisted that the
The defendant objected to evidence that the plaintiff had sold the peaches for $1.75 per bushel, provided they could be loaded and shipped on the afternoon of June 22; the contention being that the measure of damage “was the difference between the market value on the two dates alleged in the petition,” and that evidence of a particular offer or sale would be irrelevant and immaterial in establishing the plaintiff’s damage. While the price at which the plaintiff had sold the peaches was not to be taken as the proper criterion of value in estimating the plaintiff’s damage, evidence of such sale was admissible as a circumstance to be considered with the other evidence in determining the market value at that time. Southern Ry. Co. v. Williams, 113 Ga. 335 (38 S. E. 747); Kimsey v. Rogers, 166 Ga. 176 (4) (142 S. E. 667); Lott v. Banks, 21 Ga.
It is contended that the court nowhere in the charge submitted to the jury the defendant’s contention that the car was placed in the afternoon of June 22, and that, since the plaintiff’s order for the car did not name a particular hour, the furnishing of the car at any “p. m.” hour of that date was a compliance with the defendant’s duty in the premises. The defendant, as we have said, was not required by law to furnish the car at any particular hour, but had the duty merely of exercising ordinary diligence in complying with the plaintiff’s request, that is, of furnishing the car within a reasonable time, in view of the other demands and all the circumstances; but we can not agree that the defendant could reasonably have construed the plaintiff’s request as asking for the placing of the car at any time by midnight of June 22. . The evidence showed without dispute, that, according to a local custom relating to the shipment of peaches, a request for a car for “p. m. loading” was understood and accepted as a request for placement in time for loading “by the afternoon run,” or “the afternoon pulling time,” which was 4:10 p. m. Several witnesses testified to the existence of such' a custom, and no witness testified to the contrary. The agent of the railway company did testify that p. m. “means any time after 12 o’clock,” but from his entire evidence it appears that this was a mere definition of the expression “p. m.,” considered'in the abstract, and that he did not intend to contradict the testimony of the other witnesses as to the existence of the custom referred to. He further testified: “They order cars for particular time, a. m.,
On cross-examination Myles L. Greene, a member of the plaintiff firm, testified as follows: "George P. Greene & Company is composed of my father and myself. My father is dead. George P. Greene & Company is not now active. We just operated one season as that partnership. I do not know how many cars of peaches went out of Fort Yalley on the 22d, as I am not familiar with them. I do not remember whether this was the only car we had. George P. Greene & Company were buying peaches and selling them. We did them on commission with the grower. These particular peaches were owned by different ones. I could not give the ones, I would have to look up the record. I do not remember the ones who owned the peaches. Some of the peaches that came into the shed were brought in picking baskets. All were to be packed. As to who will get the money in case of recovery will depend upon whose peaches they were. I do not know, as I have not looked that up.” In view of this evidence the defendant contended that the verdict was contrary to law, because it appeared that George P. Greene & Company was a trade-name for a partnership composed of Myles L. Greene and his father, and that his father was dead. In the motion for a new trial it is said "that the suit was not brought as surviving partner, and that the evidence showed that the partnership had been dissolved, as they operated only one season.” It does not appear from the evidence whether George P. Greene died before or after the filing of the suit. If he died before the suit was filed, Myles L. Greene could have brought and prosecuted the suit as surviving partner, but the fact that instead of doing this he used the firm name would not have made the suit void or rendered the verdict and judgment in his favor contrary to law. The style in which he elected to sue would constitute a mere matter of form, and would furnish no ground for denying a recovery as a matter of law. If George P. Greene died after the suit was filed, there was a mere failure to amend the suit so that
Upon the basis of the evidence quoted in the preceding division, it is further contended that the plaintiff did not own the peaches, but that the title was in others for whom the plaintiff was selling on commission, and thus that the plaintiff was not entitled to sue. Counsel for the plaintiff says that this point is without merit, because of the principle that a carrier can not dispute the title of the person delivering the goods to him, by setting up adverse title in himself, or a title in third persons which is not being enforced against him. Civil Code (1910), § 2740. This principle might be applicable if the suit were based upon a contract; but, instead, the action is one ex delicto, in which the plaintiff is seeking a recovery for a wrong alleged to have been committed by the defendant before the assumption of contractual relations. We are of the opinion, however, that the defendant’s position is untenable in view of another principle which appears to be applicable under the evidence. The evidence authorized the inference that the plaintiff had the custody and control of the peaches, and had expended time and labor in packing and otherwise preparing them for shipment. There being further evidence to authorize the inference that the plaintiff was a factor or commission merchant, the jury were authorized to find in favor of the plaintiff’s right to sue, as claimed. Section 3610 of the Code provides that an agent having possession, actual or constructive, of the property of his principal, has a right of action for any interference with that possession by third persons. While this section has been construed as referring only to an agent who has a property either general or special in the personalty in his possession (Mitchell v. Georgia &
From all the evidence the jury were authorized to infer the existence of such facts as to raise a duty on the part of the defendant as to furnishing the car.. A further question for determination was whether there was a breach of such duty. We think the jury could have found that the defendant did not exercise reasonable diligence toward complying with the plaintiff’s request. The evidence tended to show that peaches in the vicinity of Fort Valley matured rapidly about the date of June 22, 1925, and that on that day 161 cars were placed for the use of shippers by the defendant carrier, 138 of which were on regular orders and 23 of which were on emergency orders. The evidence does not show when any of the regular orders were placed, or that the defendant could not reasonably have furnished a car for the use of the plaintiff on the “afternoon run” of that date. The defendant was not without a duty to anticipate a rapid ripening of peaches and the consequent need of enlarged facilities. Anderson v. Chicago &c. R. Co., 208 Mich. 424 (175 N. W. 246). One of the witnesses for the plaintiff testified as follows: “When peaches ripen very fast, that, of course, makes more orders on the railroads for cars. As a general proposition, the railroads do this; they anticipate to a very large extent what the movement would be by the week. When they get into the season they keep men in the territory at all times, making surveys to see just about how these peaches will ripen and how many cars will be necessary. I think they have been extremely accurate as to what their requirements will be in case of emergency. I think as a general proposition they try to anticipate and add additional cars for emergency. They get caught out a few times, but very seldom. I don’t believe there has ever been a car shortage of over two in twenty or twenty-five years. . . I don’t [know] if 1925 was one of these-times they had a car shortage. The railroad does not assume any liability for emergency orders, but do the best they can under the circumstances.” Obviously, the defendant could have ascertained the approximate acreage devoted to the production of peaches in the-vicinity of Fort Valley, as well as the
In Atlantic Coast Line R. Co. v. Geraty, 91 C. C. A. 602 (166 Fed. 10, 20 L. R. A. (N. S.) 310), it was held that a railroad company which owes a duty to furnish' refrigerator ears to transport garden truck can not escape responsibility to furnish sufficient ears upon the ground that the crop was unusually large, provided it was no larger than might reasonably have been expected from the acreage planted, knowledge of which the railroad company either possessed or had the means of obtaining. See further, in this connection, Southern Ry. Co. v. Atlanta Sand Co., 135 Ga. 35 (5, 6) (68 S. E. 807); Wadley Southern Ry. Co. v. Kent, 145 Ga. 689 (2, 3) (89 S. E. 765); Houston & Texas Central R. Co. v. Mayes, 201 U. S. 321 (26 Sup. Ct. 491, 50 L. ed. 772); Pennsylvania R. Co. v. Sonman Shaft Coal Co., 242 U. S. 120 (37 Sup. Ct. 46, 61 L. ed. 188); Pacific Fruit &c. Co. v. Northern Pacific R. Co., 109 Wash. 481 (186 Pac. 852, 10 A. L. R. 337, and note).
The evidence was ample to support the verdict as to each issue involved, and no reversible error appears. We have not deemd it necessary to mention specifically each ground of the motion for a new trial, but have endeavored to dispose of the exceptions on principle rather than by a treatment of the various assignments of error seriatim. Ground 10 of the motion for a new trial, which contains an exception to a portion of the court’s charge, is without merit if we are correct in other conclusions stated. Construed in the light of the entire charge, the excerpt complained of in ground 11 of the motion was not subject to exception upon the ground that it expressed an opinion that the defendant had not exercised due care and diligence.
The court did not err in refusing a new trial.
Judgment affirmed.