15 Ga. App. 142 | Ga. Ct. App. | 1914
(After stating the foregoing facts.) The de
1. In the first ground complaint is made that the city court of Bainbridge “is without jurisdiction of the, subject-matter of the case in question, the cause of action being a contract of bailment, entered into by and between the Blish Milling Company and the Baltimore & Ohio Southwestern Bailway Company.” It is contended that the defendant was not directly connected with the contract, and that the action should have been brought against the initial carrier; or that if the present defendant was suable at all, the remedy against it was an action for damages, under the act of Congress of June 29, 1906, regulating interstate transportation, known as the Hepburn act. 34 Stat. 584 (H. S. Comp. St. Supp. 1911, p. 1284). Even though it be true that the shipment is controlled by the Hepburn act, we fail to see that the city court of Bainbridge is by that fact deprived of jurisdiction.
We think the ruling upon this ground of the demurrer is controlled by the decision of this court in Southern Railway Co. v. Morrison, 8 Ga. App. 647 (70 S. E. 91). In that case Morrison brought suit in trover against the railway company in Monroe county, to recover cotton alleged to have been delivered to it in that county, for shipment to. Macon, in Bibb county, and by his own testimony was only able to show that he had delivered the cotton to an agent of the defendant in Monroe county, and at the Lime of the motion for nonsuit he had not shown that the cotton had not been shipped away from Monroe county, and therefore he failed to prove the venue; because he alleged an affirmative tort, and failed to show that the actual conversion did not take place in Bibb, or some other county. After Morrison had shown that the cotton was delivered to the carrier at a point in Monroe county, and not in Macon, thus, as stated by Judge Powell, “showing the loss, but not necessarily the conversion, the defendant came in and showed that the cotton had never been shipped out of Monroe county;” and this court held that an action, of trover for conversion may be maintained against a carrier in the county where the conversion took place; and that “as the defendant’s own testimony affirmatively disclosed that the presumed conversion took place at the point of shipment and not elsewhere, it consequently disclosed that if the plaintiff had a cause of action, he had one that lay within the venue where the suit was pending.”
2. In the second ground of the demurrer it is'insisted that “the petition sets up no cause of action against the defendant.” • The principles stated in the second headnote are well settled. The bill of lading, according to the uncontradicted testimony, was not presented or demanded, and the draft had not been paid, at the timo the defendant turned the car of flour over to the Draper-Garrett Grocery Company; and, under the terms of the contract, the carrier had agreed to deliver the shipment only to the Blish Milling Company, at Bainbridge, Georgia, or to its order, as might appear by the endorsement on the bill of lading. “If for any reason the seller, at the time of the shipment and delivery of the goods to the common carrier, takes a bill of lading to his own order, and attaches thereto a draft for the purchase-money, he thereby expresses his intention to retain the title until the draft is paid, or accepted and secured; and where this method of shipment is adopted the carrier becomes the agent of the seller or consignor, and would be authorized to deliver the goods only on the surrender to it of the bill of lading.” Southern Ry. Co. v. Strozier, 10 Ga. App. 157 (73 S. E. 42.) See also Erwin v. Harris, 87 Ga. 335 (13 S. E. 513), and Moss v. Sell, 8 Ga. App. 588 (70 S. E. 18). On an “order notify”
3. It is insisted, however, by counsel for plaintiff in error, that the milling company was precluded from bringing this action, by reason of the plaintiff’s failure to comply with the stipulations in the third section of the bill of lading, which, in case of failure to make delivery, require the consignor to make a written claim for damages within four months. Counsel’s whole argument is based on the fact that the shipment which is the subject-matter of this suit was moving in interstate commerce, under the provisions of the Federal law, and under a bill of lading regularly approved by the interstate-commerce commission. Counsel argue that as the Supreme Court of the United States has held that this provision of the contract is valid, and has held that the Carmack amendment to
No question of penalty or punishment of the defendant company, for failing to comply with its contract, is involved in the allegations of the petition as we view them. The suit was brought not because
Counsel criticizes the statement made in Atlantic Coast Line R. Co. v. Goodwin, 1 Ga. App. 356 (57 S. E. 1070), that “there is a wide difference between loss and conversion,” and argue's as if there is necessarily'a conversion whenever there is a failure to deliver, and from that argues that the use of the words “in case of failure to make delivery,” in the stipulation in question, precludes the present action. The statement made in the Goodwin case, supra, is adhered to, for a failure to deliver may entail loss upon a shipper without any conversion on the part of the carrier. In Southern Ry. Co. v. Morrison, supra, Judge Powell points out the difference between a mere failure to deliver and an actual conversion where there has been a failure to deliver (and, of course, a failure to deliver is included in and essential to the act of conversion). It is there said: “A person who has delivered goods to a carrier for shipment, . . where the goods have not been delivered at destination, . . can sue ex contractu in the county where the contract of shipment is made, or in the county where the contract is to be performed, that is, the county of the destination of the shipment. He can sue ex delicto for the carrier’s failure to discharge its public duty of delivering goods at the place of destination. . If he can show an affirmative tort, can show •that the goods were in fact wrongfully converted by the carrier . , he may sue in the county where the wrong took place, makihg the particular wrong itself, and not the breach of public duty for failure to deliver, the basis of his cause of action.” Suppose the shipment were destroyed by fire, the shipper would lose the goods and the carrier would fail to deliver, and yet there would be no conversion. Instances might be multiplied indefinitely to show that while the failure to deliver may sometimes amount to a conversion, it does not necessarily have that effect. It has been held
It is not necessary to refer to the argument that the railway company waived its right to insist upon the provision of the bill of lading in regard to the filing of a written claim within four months; for the interstate-commerce commission, in Order No. 787, issued June 27, 1908, specifically ruled that no provision of a bill of lading can be waived. The question of a waiver is not involved 'here, because the allegation of the petition is that the carrier repudiated and violated the contract.
4. As to the third ground of demurrer, it is not necessary to add to what is said in the fourth headnote.
5. We think the fourth ground of the demurrer—that, “the suit being a suit in trover, and the petition not showing that the bailment is waived, and the property not being in the hands of, nor suit filed against, either party to the contract, the suit will not lie”—was properly overruled, since it appeared from the petition that the defendant was the last of several connecting carriers, each of whom had adopted the contract, and that the property passed into the possession of the defendant. The suit in trover was itself a waiver of the bailment. “A suit in trover is not an action for loss or damage to property, but an action for conversion of property. The conversion on the part of the carrier is an abandonment by it of its contract of shipment.” Merchants & Miners Transportation Co. v. Moore, supra. In that case the bill.of lading was issued, not by the defendant, the Merchants & Miners Transportation Company, but by the Baltimore & Ohio Bailroad Company, and Moore & Company paid the draft and obtained the bill of lading at Savannah, -the point of destination of the shipment. A stipulation similar to that in the instant ease was incorporated in the
6. Error is assigned upon the refusal of the court to allow a witness for the plaintiff to state, on cross-examination, the amount for which the flour was sold by the railway company in December. The movant insists that if the witness had answered in the affirmative, that the contents of the car sold for only $299, it would have demonstrated the value of the flour, and should at least have been considered by the jury on the subject .of value. • It is well settled that an assignment of error as to the refusal to allow a witness to be asked a question presents nothing for the consideration of the reviewing court, when it does not appear that the judge was informed of the probable answer of the witness. In the assignment of error before us it is stated that the defendant “did not and could not state that he expected any particular answer from this witness, the witness being from the enemy’s camp and under cross-examination.” There appear to be reasons why the rule requiring that the expected answer be stated to the court should be relaxed upon cross-examination, but the ruling of the judge seems to be in accordance with what has been previously held on this point. See Loeb v. State, 6 Ga. App. 28 (24 S. E. 338).
Aside from this, however, it does not appear that the plaintiff in error was injured by the refusal of the court to allow the witness to answer the question, because even if the witness had answered that
7. Exception is taken because the court charged the jury as follows: “Should any apparent discrepancies arise between the witnesses on the stand, it is the duty of the jury to reconcile such discrepancies, if possible, so as to make each and every witness speak the whole truth. Should you be unable to reconcile such apparent discrepancies, then it is entirely trithin the province of the jury to say who and what they will believe.” It is insisted that the tendency of this instruction was to “turn the jury loose” to base the verdict on matters outside of the testimony, or at least to leave the jury to infer that they could arbitrarily disregard the whole evidence of a witness simply because there was a discrepancy at some point in his evidence. The verdict returned, which is supported by the evidence, does not indicate that the finding of the jury was based upon anything outside of the record; and so, while it would have been better for the judge to confine the jury to the testimony actually adduced, when he told them it was within their province to determine what they would believe, the movant failed to carry the burden of establishing, in jury as well as error.
8. Exceptions are taken to the charge of the court on the subject of tender. It is true that either actual return of the property or a tender to return goes in mitigation of damages, but the jury were authorized to find, from some of the evidence, that the entire property was never tendered, and for that reason, as well as because the court did expressly instruct them that evidence of tender would go in mitigation of damages, if they should find any, we deem a discussion of this assignment of error unnecessary. According to the plaintiff’s evidence, 18 barrels of the flour had been sold prior to any offer to return the remainder. Under the undisputed testimony there had been a deterioration in the condition and value of the flour subsequently to the shipment; and in offering to return the flour to the Blish Milling Company the railway company did
9. Since, under the well-settled rule in Georgia, the alternative recovery of damages in trover is limited to the value of the property converted, with interest, the court erred in instructing the jury that the freight charges were to be added thereto; but since the amount of the freight charges was fixed by agreement of the parties, it is unnecessary to send the case back for another trial to correct the error in this respect. It is undisputed that the freight had not been paid; and direction is therefore given that the verdict and judgment be reduced by writing off $124.21, the amount of the freight charges, together with $28.73, interest thereon.
10. Complaint is made that the court erred in charging the jury, “Should you find, from the evidence, that .' . the railroad company converted the flour, but after so doing they made a tender of the entire shipment of flour back to the plaintiff, and that there had been no damage resulting, from the time of the alleged conversion to the time of the tender back to the plaintiff, this could be plead in mitigation of damages. Should you find that no damage had been caused by reason of the conversion, up to the time of the offer to tender, and of actual tender of the flour back to the plaintiff, you would be authorized in finding in favor of the defendant railroad company.” It is insisted that this charge is confusing and conflicting and fails to state correctly the law, because the court failed to explain to the jury what was meant by “mitigation of damages,” and did not specifically state that the jury could take the tender into consideration or deduct any amount from the market value of the flour, in mitigation of damages, and did not give any rule to govern the jury in determining what was mitigation of damages. From these instructions the jury were obliged to understand that if they found that no damage had resulted to the plaintiff from the alleged conversion, and that the defendant tendered the property back, these facts should be considered by them in reduction of the damages. The word “mitigation” is a term in ordinary use, and may be assumed to have been understood by a jury of ordinary intelligence. If counsel for the defendant desired the court to give instructions such as they contend should have been given on this-.
11. In instructing the jury that they would be authorized to find for the plaintiff for damage done to the flour after the conversion, the court erred, for the reason that by conversion the liability of the defendant and the amount thereof became fixed. If the defendant converted the property, it became liable to respond, either by being compelled to return the property itself, with its reasonable hire, or if it was not possible to return, the property, to pay the market value and interest; and it was a matter of no concern to the plaintiff what the defendant did to the property after converting it. It is, of course, always error to submit to the jury a theory which finds no support in the evidence; but this error does not afford ground for reversal when it is perfectly plain that the error was harmless, and that it' could not, from the nature of things, have affected the result. In the present case, it is true, there is no evidence that the defendant damaged the property after conversion; and therefore, even if this instruction had been correct, it would have been inappropriate; but there is absolutely no dispute as to the conversion, and even if the evidence as to the market value of the flour had been more conflicting than it was, the instruction as to damages to the flour after conversion could have had no bearing upon the finding of the jury on the subject of value.
We have already referred to the matter of freight, and it is apparent that the verdict in favor of the plaintiff included the charge for freight, which had not been paid by the plaintiff. Necessarily the cost of transportation, or, in other words, the freight charge, enters into the market value of an article at any designated point to which such an article is ordinarily • transported. When the
Judgment affirmed, wüh direction.
Note: A writ of error from the Supreme Court of the United States was granted in this case.