14 Ga. App. 767 | Ga. Ct. App. | 1914
(After stating the foregoing facts.) Since the controlling question in this case is involved in a consideration of the points raised by the cross-bill of exceptions, it would be futile to consider or discuss the sole question raised by the main bill of exceptions, sued out because the court refused to grant the defendant’s motion for a new trial, which was based entirely on the alleged insufficiency of the evidence to sustain the verdict. Under the ruling hereinafter made on the cross-bill, the case must go back for another trial,, and the evidence adduced at that trial may be radically different from that contained in the present record.
From a consideration of these rulings of the Supreme Court of the United States, it does not appear to be material that no special inquiry was made by the carrier at the time the contract of shipment was entered into, since it nowhere appears that the carrier had knowledge of any great discrepancy between the actual value of the mules and the limiting valuation placed thereon as a basis for the lower of two rates allowed to the shipper. In fact, in the case of Chicago, Burlington & Quincy Railway Co. v. Miller, supra, it appears that the bill of lading placed a value upon a certain stallion of $100, which the plaintiff claimed was actually worth $2,000, and that the limitation stipulated in the contract was void under a statute of Iowa, the State in which the contract was made, and was also illegal and invalid under a clause in the constitution of Nebraska, the State in which the loss occurred and in which the case was tried, and yet the Supreme Court sustained the contract as written, and declared that Congress had manifested a purpose to take possession of the entire subject of liability of a carrier by railroad for interstate shipments, and that the regulations contained in the act of 1887, as amended by the act of June 29, 1906, had superseded all State regulation upon the same subject.
To us it appears that the evidence clearly established the existence of two different lawful rates, not only on file with the commission, but also plainly set forth in the bill of lading issued by the carrier, which limited the valuation of each mule to $100, for the purpose of applying the lower of two rates named in the contract. As decided in the case of Adams Express Company v. Croninger, supra, it is immaterial whether or not there was any discussion or oral agreement between the carrier and the shipper, or the agents of the shipper, since, as was there held, inquiry as to the actual value of an interstate shipment is not vital to the fairness of such a stipulation, where it plainly appears from the receipt, as well as from the published rates on file with the interstate-commerce com
It is settled in this State that “loss of goods by a wrong delivery, negligently made by the carrier, is a conversion, for which the carrier is liable to account at the full value of the goods,” and does not come within the terms of a special contract fixing a limited valuation upon the goods at the time of shipment, in consideration of a lawful reduction of the freight rate. Savannah, Florida & Western Ry. Co. v. Sloat, 93 Ga. 803 (20 S. E. 219), and Atlantic Coast Line Railroad Co. v. Goodwin, 1 Ga. App. 351 (57 S. E. 1070). In these two cases inanimate freight was shipped. In Georgia Southern & Florida Ry. Co. v. Greer, 2 Ga. App. 516 (58. S. E. 782), it was held, that “A carrier of live stock can, by special contract, be released from liability for injuries to such stock arising from named causes, and can as to these and all other incidents of transportation, by such contract, stipulate for liability only in the event of damage and loss by the gross negligence of its servants.” As held in several decisions of the United States Supreme Court, hereinbefore referred to, and the recent case of Atchison, Topeka & Santa Fé Railway Co. v. Robinson, 233 U. S. 173 (34 Sup. Ct. 556), the effect of the Carmack amendment to the Hepburn act was to give to the Federal jurisdiction control over interstate commerce, and to make supreme the Federal legislation regulating liability for property transported by common carriers in interstate .commerce; and since it appears that Congress intended to take possession of the entire subject of interstate shipments, to the exclu
It is conceded by able counsel for the railroad company that a carrier can not actually convert goods and be protected by a valuation clause; since “where the carrier has converted the goods, he will be deemed to have thereby abandoned the contract of shipment, and he can not thereafter insist on a stipulation that' his liability shall be limited to a certain sum at which the goods are valued; nor can he do so where the negligence which occasioned the loss was wanton or wilful.” 1 Hutchinson on Carriers (3d eel.), § 432. “He can not, of course, exonerate himself from the consequences of the fraud or felony either of himself or of his servants.” Id. § 418. And “a contract can not avail if the act of the carrier or his servants amounts to misfeasance. . . The act which will deprive the carrier of the benefit of a contract for limited liability fairly made must be an affirmative act of wrong-doing, not merely ordinary neglect in the course of the bailment. It need not necessarily be intentional wrong-doing, but the mere omission of ordinary care in the safe-keeping and carriage of goods is not the misfeasance intended by the authorities.” Id. § 478. “Where there is a suit for a conversion, the wrong-doer can not take advantage of an agreed valuation of the property in order to lessen the amount of his liability.” Georgia Southern & Florida Ry. Co. v. Johnson, 121 Ga. 231 (48 S. E. 807). In Georgia Railroad Co. v. Keener, 93 Ga. 808 (21 S. E. 287, 44 Am. St. R. 197), where some of the goods were stolen, and there .was no evidence to show how or under what circumstances the theft occurred, the court said: “Presumptively the loss was occasioned by the company’s negligence, and this being so, it was liable for the full value of the goods so lost.” It appears, however, that in that case the stipulation by which it was sought to limit the liability of the shipper to. a stated valuation was not valid, since there was no attempt to esti
We may conclude that evidence of an actual conversion or of some wrongful act, or of wilful or wanton negligence would be necessary, under the present state of the law, before a contract limiting liability on an interstate shipment, by a fixed agreement as to value of the shipment, would be construed as furnishing no security against the collection from the carrier of the actual value of live stock, where loss occurred; and though it maj be conceded that a failure to deliver at the point of destination would raise a presumption against the carrier that a conversion had occurred, the presumption is not conclusive, but may be overcome if it definitely appears that such loss resulted from negligence, not amounting to gross negligence, in which event the contract limitation would apply, and the recovery be determined thereby. In the absence of any evidence or explanation from the carrier, and upon proof that three inferior mules had been substituted for three others delivered to the carrier for transportation, the plaintiff was entitled to recover the actual value of the mules as shown by proof, less the value of those substituted 'and which were accepted by the consignee under protest. On the other hand, if no substitution occurred, there could be no recovery for such difference; or if the substitution occurred through no wrongful, wanton, or wilful act of the carrier or its agent, but through negligence only, not amounting to gross or wanton negligence, then the recovery to which the plaintiff would be entitled would be limited by the contract of shipment to the agreed valuation of $100 per mule, in consideration of the lower rate charged; and since the mules actually received were of greater value than this, there could be no recovery on account of the substitution.
From the evidence for the railroad company, the jury would have been authorized to infer, had they wished to believe this testimony rather than that in behalf of the plaintiff, that the mules originally loaded on the car at Nashville, Tennessee, were the actual mules delivered to the plaintiff at LaQrange; since that testimony showed that the identical mules loaded at Nashville were unloaded on the same day at the same place, and, after the removal of one which had been injured, the remaining ■ 28 mules were reloaded
Also, the jury might have determined that there was no wilful, wanton, or wrongful conversion on the part of the carrier, its agents or- employees, and that if there was a substitution, it did not occur from any such cause, but possibly was the result of accidental or negligent intermingling of the mules with other mules at the stock-yards in Nashville or Atlanta, without any tortious act or intention on the part of the carrier, and without profit or advantage to it, and without even gross negligence on its part, and possibly on account of the natural propensities of the animals themselves, which the contract was intended to guard against. The loss raised a presumption of a conversion, sufficient to sustain the verdict, but the explanation or the proof offered in behalf of the carrier might have convinced the jury, for aught we know, that there was no bad faith or gross negligence on the part of the carrier, its agents or employees; in which event the limitation as to value, fixed by the contract, would have applied; or if the jury believed there was no substitution, they might have so found, under the evidence.
On the other hand, if the jury had believed there was a substitution, and if in their opinion the explanation made by the carrier did not rebut the presumption arising from such substitution, they might have found that there was a wrongful, wilful, or wanton conversion, or a conversion brought about by gross negligence, and
It follows that the court erred in withdrawing from the consideration of the jury the entire question as to the substitution of three certain mules for three others of higher value, and the whole matter should have been submitted to the jury, under a proper charge instructing them as to their consideration of the contract of affreightment and the explanation offered by the railroad company to account for the loss by substitution, if such a loss actually occurred.
Judgment on cross-bill of exceptions reversed; mam bill of exceptions dismissed.