33 Ga. App. 773 | Ga. Ct. App. | 1925
“Under repeated rulings of this court and of the Supreme Court, each special ground of a motion for new trial must be complete within itself; and when so incomplete as to require a reference to the brief of the evidence, or to some other portion of the record, in order to determine what was the alleged error and whether such error was material, the ground will not be considered by the reviewing court.” Tice Co. v. Evans, 32 Ga. App. 385 (16) (123 S. E. 742); Bank of Commerce v. First Nat. Bank of Ocilla, 32 Ga. App. 410 (1) (123 S. E. 736); Pound v. Smith, 146 Ga. 431 (5) (91 S. E. 405); Clare v. Drexler, 152 Ga. 420 (3) (110 S. E. 176). The second ground of the amendment to the motion for a new trial, complaining of the admission of testimony, wholly fails, in terms or in substance, to state the particular evidence and the objection thereto sufficiently for this court to pass thereon.
“Exceptions to the admission of evidence over objection should show what grounds of objection were stated to the trial judge.” Bank of Waynesboro v. Herrington, 32 Ga. App. 403, 404 (2) (123 S. E. 750); Morgan County Bank v. Poullain, 157 Ga. 423, 428 (121 S. E. 813, 33 A. L. R. 592); Steed v. Cruise, 70 Ga. 168 (5); Smith v. Pilcher, 130 Ga. 350, 356 (4) (60 S. E. 1000). The third ground of the amendment to the motion for a mistrial is for this reason defective. The rule is different where a ground complains of the rejection of testimony offered by the movant. . In such a case it is not necessary that the motion shall show upon what ground the testimony was excluded, or that the judge rejected it on his own motion. Morgan County Bank v. Poullain, supra.
It is not incumbent upon the court, in the absence of a timely written request, to charge as to particular shifts in the burden of proof or of proceeding as they may develop under the evidence. Askew v. Amos, 147 Ga. 613 (5) (95 S. E. 5);
In an action in tort against a common carrier on account of a breach of its duty to transport and deliver in good condition live stock received by it in good order, there is no presumption of law against the carrier (Civil Code of 1910, § 2712; L. & N. R. Co. v. Warfield, 129 Ga. 473 (1, 2) (59 S. E. 234); Ragsdale-Lawhon Mule Co. v. Davis, 30 Ga. App. 752 (1) (119 S. E. 428); Heath v. Sandersville R. Co., 23 Ga. App. 256 (2) (98 S. E. 92)), where it appears that the plaintiff consignee, on paying the freight and receiving the animals, executed a written receipt therefor as “in good order,” and there was at the time of delivery no visible indication of their sickness. See Ocean Steamship Co. v. McAlpin, 69 Ga. 437; 10 Corpus Juris, 379, 380; 4 R. C. L. 993, 994. It was therefore not error for the trial judge, in instructing the jury on the burden of proof, in the several excerpts to which exception is taken, to charge in effect that the burden was on the plaintiff consignee to show that although the stock appeared to be in good order when delivered, yet they were not in good order, and that the sickness or death of the animals after delivery was occasioned by the negligence of the defendant carrier. Nor, under the rule stated above in paragraph 3, was it incumbent upon the court to charge as to when or how this burden would shift under subsequent developments of the evidence.
“In an action instituted by a shipper of goods against a common carrier on account of the civil wrong occasioned to the shipper by reason of the fact that the carrier, having received the shipment in good order, did not transport it safely, but delivered it to the shipper (who was also the consignee) in a damaged condition, particular acts of negligence need not be alleged,” and if alleged, “specified allegations of negligence may be treated as surplusage.” L. & N. R. Co. v. Warfield, 129 Ga. 473 (1, 2 (a)) (59 S. E. 234); s. c. 6 Ga. App. 550 (65 S. E. 308); L. & N. R. Co. v. McHan, 144 Ga. 683 (87 S. E. 889); Heath v. Sandersville R. Co., 23 Ga. App. 255 (1, 2) (98 S. E. 92).
The act of Congress of June 29, 1906, entitled “an act to prevent cruelty to animals while in transit by railroad,” etc., in
The Federal statute provides for an extension of the time of confinement of the animals without feeding, watering, and resting, from 28 to 36 hours, where there is the prescribed written authority therefor from “the owner or person in custody of that particular shipment.” But here also such extension does not ipso facto and under all circumstances conclusively relieve the carrier from all liability for negligence for irregularity or delay in feeding, watering, and resting, although it will relieve from the statutory penalty, and in a civil action by the owner for damages under the common-law liabilities of the carrier may be strongly evidential of proper diligence, where the feeding, watering, and resting are more than 28 but less than 36 hours from the time of shipment. This rule would seem to apply with especial force where, as here, the writing is executed not by the owner, but by the shipper, and the shipper, before delivery to the carrier, has parted with his title and has in the bill of lading directed that the shipment “be delivered to the consignee without recourse on the consignor,” and that delivery shall not be so made “without payment of freight and all other lawful charges,” and where, as here, it also appears that the writing signed by the shipper is executed without any reduction in the freight rate or other consideration.
Judgment reversed. Bell, concurs.