28 Ga. App. 418 | Ga. Ct. App. | 1922
This suit was brought in the city court of Bainhridge, for the purpose of recovering the value of certain dry-goods alleged to have been shipped from Baltimore, Md., to Bainbridge, Ga. The suit was brought against James C. Davis, Federal agent, operating the Merchants & Miners Transportation Company and the Atlantic Coast Line Railroad. The defendant demurred to the petition, contending that it was impossible to tell whether the suit was a suit on contract or a suit for a tort, and whether.the suit was against James C. Davis as Federal agent in control of railroads generally and as to all of the transportation lines in the Hnited States, or was against James C. Davis, Federal agent, in respect to the transportation effected by the Merchants & Miners Transportation line of steamers, or whether it was a suit against James C. Davis, Federal agent, in respect to the transportation effected on the Atlantic Coast Line Railroad alone, or whether it was a suit against James C. Davis, Federal agent, in respect to the transportation effected by both the Merchants & Miners Transportation line and the Atlantic Coast Line Railroad. After the filing of the demurrer the petition was amended, and if there was any doubt as to who was the defendant in the petition as originally filed, this doubt is fully solved by the allegations of the petition as amended.
The writer of this opinion does not think that the original petition fully merits the criticisms aimed it by counsel for the defendant. It seems to this writer that the original petition makes it clear against whom the suit was filed and why it was filed. It alleges, in substance, that the plaintiff is the duly qualified administratrix of the estate of Sam Seigel, late of Bainbridge, Ga., who died on February 4th, 1921; that the defendant therein-after named has damaged petitioner’s intestate in the sum of $325 by reason of the facts thereinafter alleged; that on or about August 5, 1919, the Merchants & Miners Transportation Company, a car
In the demurrer it was contended that it was impossible for the defendant to make a defense, because it cannot be decided with any degree of certainty whether the suit was brought against Davis as director-general of the Merchants & Miners Transportation Company, at Baltimore, which was then being operated by the United States under the control of said Davis, or against the director-general Davis in charge of the Atlantic Coast Line Railroad, at Rainbridge, and whether the case is a suit on contract or in tort. The petition as amended plainly and distinctly alleges that the goods were shipped from Baltimore and delivered at that point to the Merchants & Miners Transportation Company, which was under the control of Davis as director-general, etc., and transported by the carrier to Savannah, Ga., and there delivered to the Atlantic Coast Line Railroad Company, to be delivered to the consignee at Bainbridge, Ga., and that the shipment was lost by-the latter carrier and never delivered to the consignee. It was plainly a suit on contract for failure to deliver at destination in good order the freight which had been delivered to the Atlantic Coast Line Railroad Company by the connecting carrier at Savannah, Ga. In other words, the damages alleged were damages from a breach of contract which took place in the county in which Bainbridge is situated, which was the county of the destination of the consignment and where the carrier undertook by its contract to deliver the goods which had been delivered to it at Savannah by the connecting carrier at that point. It has been repeatedly held that where a carrier fails to deliver the goods at destination, or delivers them in bad order, section 2798 of the Civil Code (1910) confers1 jurisdiction of the action for the resulting damages on the courts of the county where the failure to deliver them in good order occurred; and it is immaterial whether the action be ex contractu or ex delicto. Burns v. Louisville & Nashville R. Co., 6 Ga. App. 614 (65 S. E. 582); Louisville & Nashville R. Co. v. Warfield, 129
Judgment affirmed.