17 Ga. App. 236 | Ga. Ct. App. | 1915
At the former appearance of this case in this court (14 Ga. App. 767, 82 S. E. 465), a full statement of the facts adduced at' the trial then under review was made, and since the evi
Any specific evidence bearing precisely on points herein discussed will be referred to in the respective divisions of this opinion. It may be said, by way of preface, that the law governing this case, as declared in the previous decision of this court, is of course the law of the case, and this is said without meaning to intimate that the court even desires or thinks' it necessary to recede in any important particular from any of the rulings therein laid down.
All the points involved that we consider it necessary to pass on explicitly are covered by the headnotes; but to some slight extent we consider it proper to enlarge, upon some of the rulings therein enunciated.
In the case from which the following quotation is taken, Justice Lamar appears to have clearly recognized the doctrine, declared in the second headnote above. The holding of the United States Supreme Court on the precise point needs no discussion, and is as follows: In an interstate shipment, “when the holders of the bills of lading proved the goods had not been delivered to the consignee, the presumption arose that they had been lost by reason of the negligence of the carrier or its agents. The burden of proof that the loss resulted from some cause for which the initial carrier was not responsible in law or by contract was. then cast upon the carrier. The plaintiffs were not obliged both to prove their case and to disprove the existence of a defense. The carrier and its agents, having received possession of the goods, were charged with the duty
It has been generally held that the effect of the Carmack amendment is to regard the initial carrier, engaged in interstate commerce and receiving property for transportation from a point in one State to a point in another, as having contracted for through carriage to the point of destination, using the lines of connecting carriers as its agents. Atlantic Coast Line R. Co. v. Riverside Mills, 219 U. S. 186 (31 Sup. Ct. 164, 55 L. ed. 167, 31 L. R. A. (N. S.) 7); Louisville & N. R. Co. v. Scott, 219 U. S. 209 (55 L. ed. 183, 31 Sup. Ct. 171); Southern Ry. Co. v. Bennett, ante, 162 (86 S. E. 418), Gibson v. Little Rock &c. R. Co., 93 Ark. 439 (124 S. W. 1033); Blackmer &c. Pipe Co. v. Mobile &c. R. Co., 137 Mo. App. 479 (119 S. W. 1); Travis v. Wells, 79 N. J. L. 83 (74 Atl. 444); Earnest v. Delaware &c. R. Co., 149 App. D. 330 (134 N. Y. Supp. 323); Greenwald v. Weir, 130 App. Div. 696 (115 N. Y. Supp. 311); Missouri &c. R. Co. v. Stark Grain Co., 103 Tex. 542 (131 S. W. 412), modifying — Tex. Civ. App.— (120 S. W. 1146).
The initial carrier can not limit its liability in a through bill of lading tQ its own lines. Southern P. Co. v. Meadors, — Tex. Civ. App.— (129 S. W. 170), reversed on other grounds in 104 Tex. 469 (140 S. W. 427).
Under the contract of affreightment in the instant case, the shipper assumed “all risk of injury which the animals, or any of them, may receive in consequence of either or any of them being wild, unruly, or weak, and of the escape of any portion of said stock, or by maiming each other or themselves, or in consequence of heat or suffocation, or other ill effects of being crowded in the ears, or on account of being injured by the burning of hay, straw, or other material used by the owner for feeding or bedding the stock, or otherwise.”
The undisputed testimony showed that the mule, for the death of which the plaintiff sued, was a first-class mule, young, sound,
A carrier can not exempt itself by contract from the consequences of a tortious act committed through its agents or employees, though not liable as an insurer where it undertakes to transport live stock.
A carrier converting property intrusted to the carrier for transportation will -be deemed to have thereby abandoned the contract of shipment, and can not thereafter insist on a stipulation therein that the carrier’s liability shall be limited to a fixed sum at which the goods are valued; nor can the carrier insist upon the binding effect of such a stipulation, where the negligence that occasioned the loss was wanton and wilful. 1 Hutch. Carriers (3 ed.), § 432. A carrier can not exonerate himself from the fraud or felony of himself or his servants, and a contract will not avail if the act of the carrier or his servants amounts to misfeasance, though ordinary neglect alone in the course of the bailment will not deprive the carrier of the benefit of a contract fairly made which it limits. 1 Hutch. Carriers, §§ 418-478. 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).
It was held when this case was here before 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
The evidence for the defendant showed that the 28 mules shipped by the plaintiff, including the three mules for which three inferior mules had been substituted, were placed in a car at the point of shipment/ and the car duly sealed; that the car when it arrived at Atlanta was still sealed; that the mules were unloaded in Atlanta, reloaded in another car, and forwarded to destination, and that on arrival at destination the substitution of three mules was discovered. The testimony of the employees of the defendant who unloaded and reloaded the mules in Atlanta, that the mules were not exchanged, and that all the mules unloaded and reloaded were the same, when taken as a whole, evidently amounted to a mere conclusion on their part, since it does not appear that they took note of each particular mule as it was unloaded, or when reloaded, to see that no substitution occurred, but from this testimony it appears merely that the same number of mules unloaded were reloaded.
The contract of affreightment limited the liability of the de
Again, as was said by Justice Lamar, “the plaintiffs were not obliged both to prove their case and to disprove the existence of a defense;” and since the plaintiffs were not required to disprove the existence of wanton or wilful negligence, or of affirmative wrong-doing on the part of the defendant in effecting or allowing the substitution of three inferior mules for three mules of far greater value, the jury could have inferred, from the failure on the part of the defendant to establish that there was no wrong-doing or wilful or wanton negligence on the part of the defendant, that the burden of establishing this defense had not been carried by the defendant, upon which such burden properly rested. The carrier and its agents were charged with the duty of explaining why the mules originally shipped were not delivered. “It must be so, because carriers not only have better means, but often the only means, of making such proof.” If the failure to deliver was due to some cause against which the carrier could lawfully contract,
The case was fairly tried under the rules of law laid down hy this court in this case when it was here before (14 Ga. App. supra); and the trial judge did not err in overruling the motion for a new trial. Judgment affirmed.