17 Ga. App. 403 | Ga. Ct. App. | 1915
1. Under a fair construction of the petition, the suit was not brought to recover damages for a breach of contract of carriage, or for a breach of the common-law duty of a common carrier, but was based on sections 2771 and 2772 of the Civil Code, as to freight shipped to be conveyed by two or more carriers, making it the duty of either the initial or any connecting carrier, on application by the shipper or the consignee, to trace freight which may have been lost, damaged, or destroyed, and to inform the applicant, in writing, within 30 days after applica- . tion, of the time, place, and manner of the loss, damage, or destruction, and the names of the parties, and their official position, if any, by whom such facts can be established, and providing that on failure to supply such information the carrier shall be liable for the value of the freight lost, damaged, or destroyed, in the same manner and to the same extent as if the loss, damage, or destruction had occurred on its own line.
2. “The liability of the railroad company under these sections [2771 and 2772] is not incidental to the transportation of the freight, springing out of the contract of affreightment. It is in the nature of a penalty, prescribing damages for non-compliance with a statutory duty. When the railroad company refused to trace the goods and give the information, it made itself liable to the shipper by the refusal, independently of its contract.” McCall v. Central Railway Co., 120 Ga. 602, 605 (48 S. E. 157). In such a suit it is not'necessary to produce the contract of affreightment, and, therefore, not necessary to set it out as a part of the original petition asking for the recovery of the penalty fixed by law. See Davis v. Seaboard Air-Line Ry., 136 Ga. 278 (2) (71 S. E. 428); Savannah, Florida & Western Ry. Co. v. Elder, 116 Ga. 942 (43 S. E.
4. The court erred in refusing to allow the amendment, which was germane to an action based on sections 2771 and 2772.
5. The court erred in sustaining the demurrer and dismissing the petition.
Judgment reversed.