127 Ga. 187 | Ga. | 1906
(After stating the foregoing facts.)
If there was no forfeiture by virtue of the contract, was there a forfeiture by abandonment? In Carr v. Georgia R., 74 Ga. 73, the deed contained an agreement for a reversion on the termination of a particular use. In Wright v. DuBignon, 114 Ga. 765, a tenant ■sought to remove a servant’s room, metallic gutters, and water-pipes laid under the ground. In Richards v. Gilbert, 116 Ga. 382, counters, tables, etc., were held not to be covered by a mortgage of realty, it being agreed that they should not be so. The distinction between these cases and the one at bar is easily seen. In Charleston Ry. Co. v. Hughes, 105 Ga. 1, where a life-tenant had made a conveyance of land to a railroad company, and rails and ties forming a part of its line of railroad had been placed on such land, upon the death of the life-tenant it was held that the remainderman could not, in an
It is suggested that if the carrier yielded to the demand of the true owner and delivered the property to the latter, he could have-set this up as a defense against the person delivering the property for shipment; but that it is optional with the carrier whether he-will do so, or will transport the goods, deliver them to the consignor’s order, and leave the true owner to look alone to the consignor for redress. Is this position sound? Why can the carrier-deliver the property to the true owner, unless the owner is entitled to possession, in spite of the shipment by another? Certainly a carrier can not deliver property to a person who has no right of possession, and successfully defend himself by reason thereof. If there is a right of possession, duly asserted and enforced, can the carrier disregard it? In Trans. Co. v. Barber, 56 N. Y. 544, it is said: “When the owner comes and demands his property, he is entitled to its immediate delivery, and it is the duty of the possessor to make it. The law will not adjudge the performance of this duty tortious as against a bailor having no title.” In Hentz v. The Idaho, 93 U. S. 575, Mr. Justice Strong, in the opinion, says: “But if he [the bailee] has performed his legal duty by delivering the property to its true proprietor at his demand, he is not answer
Much of the confusion and diversity of rulings in regard to the liability of a railroad company for acts of another person or corporation operating its line arises from a failure to accurately and exactly apprehend the question to be determined, and then to apply the underlying principle to the particular case. A railroad company is charged with certain duties to the public. It can not devolve'the exercise of its franchises upon another person or corporation without the express consent of the State; and it has no implied power to lease its road and franchises, and thus affect the public. If it-makes a lease, or licenses .another to exercise its franchises in whole or in part without express legislative authority, it remains liable for the acts of the lessee or licensee in such operation. If, under express legislative authority, a railroad company leases its property and franchises to another, reserving'no control in the use of the property or the exercise of the franchises, but the lessee has exclusive control, some courts hold that the lessor is not li'able for damages arising from the negligence of the lessee, unless the statute authorizing the lease expressly or impliedly reserves a continuing liability in the lessor for the torts of the lessee. Other courts, however, hold that the lessor is liable for the torts of the lessee, irre
It is contended by counsel for plaintiff in error in their brief that “a railroad company is responsible for its lessee’s neglect to maintain and operate the road, as well as for any damage arising from a refusal by the lessee to discharge an imposed duty, or any negligence in the carrying of goods or passengers or running its trains, b3r reason of which damage results to a shipper or passenger or person injured by reason of such negligence,” but not further; and that this case does not fall within the rule. In this view we can not concur. It is agreed that the property was loaded on the cars of the defendant and was to be transported to a distant point. The act of the lessees in receiving, transporting, and delivering the property could only be done by virtue of the franchises of the defendant company. The conversion complained of was accomplished by acts done under such franchises. The lessees could not have accomplished it at all, as it was done, except by reason of the lease
The ruling that the lessor would not be liable to one of the servants of the lessees for an injury resulting from negligence of a fellow-servant, and not from any failure of duty on the part of the lessor (Augusta R. Co. v. Killian, 79 Ga. 234; Banks v. Georgia R. Co., 112 Ga. 655), is quite different. The servants thus concerned were not servants of the lessor, but of the lessees. The liability of a railroad company in this State for injury to one fellow-servant by reason of the .negligence of another, where he himself is free from fault, is a statutory exception to the general rule of non-liability of a master to one servant for injury arising from negligence of a fellow-servant.
Constructions of particular statutes and statements as to what is. necessary to -be averred under them throw but little light on the general question. An illustration of this will be found in Pittsburgh Ry. Co. v. Hannon, 60 Ind. 417.
With meager light from outside sources on the subject of what the pleadings should allege, where it is sought to hold the lessor liable for the conduct of the lessee, we turn to the decisions of this State touching upon the subject. In Central R. Co. v. Brinson, 64 Ga. 475, it was held that “Although one railroad may be leased to and operated by another,'by which the latter malees itself responsible for acts done on the road leased, yet neither loses its identity, and any tort committed upon the line of the one or the other should be so alleged and proved. Especially is this true where both roads are constructed through the territory of the same county.” This, however, merely holds that, where it is sought to hold a lessee company liable for its acts in operating the leased road, the fact of the lease or operation should be alleged. In Central Railroad v. Whitehead, 74 Ga. 441, Hall, J., held that while it might have been sufficient to have alleged that the railroad company sued controlled and operated the road where the injury occurred, without specifying the particular character of agreement under which this was done, yet where the plaintiff alleged with needless particularity or unnecessary circumstances what • might have been more generally stated, he was bound to prove the fact as alleged; and therefore, having alleged that one railroad operated another under a lease, it was necessary to prove the lease, and this could not be done by parol where the lease was in writing. In his opinion he said: “It would have been sufficient to allege that the defendant controlled and operated the road, without specifying the particular character
From the foregoing discussion it would seem to be better pleading, in the absence of any statutory provision, to allege whether the act complained of was committed by the railroad company itself through its own employees or by the employees of the lessee or licensee. If the point were specifically made at the proper time, perhaps it might be necessary to amend in order to adjust the pleadings to the evidence. But this could be done. . Here error is assigned on the refusal to grant a general motion for nonsuit, and because the verdict was not authorized by the evidence. Almost the entir'e argument in this court was based upon the contention that the defendant was not liable for the conversion by its lessees, and the Heins ease was only cited passingly in one of the briefs. The ruling in that case as to the grant of a nonsuit was merely that where the allegation was that a licensee did the injury complained of (whether necessary or not to have been made), the proof must sustain it.
Since this action was brought in 1896, an act has been passed (Acts 1899, p. 54) requiring all railroad companies leasing or which have already leased their property or line of railroad to record such
In the brief of counsel for defendant in error an attack is made on the legality of the lease and of the possession of the lessees, because the original lease was to an individual who, it was claimed, could not exercise the franchises, and because the present holders are foreign corporations. But, under the views we have expressed, .above, this question is not material; since we hold that a legal lease does not operate to prevent liability. See on this subject, hpwever, Georgia Railroad Co. v. Maddox, 116 Ga. 64. Under the evidence the plaintiff was entitled to recover, and there was no error in overruling the motion for a new trial.
Judgment affirmed.