86 Ga. 203 | Ga. | 1890
Benson & Co. sued the railroad company for damages occasioned by the loss of certain goods described in the declaration. The process attached to the declaration commanded the defendant “to be and appear at the city court of Richmond county next to be holden in and for the county aforesaid, on the first Monday in July, 1889 and was dated July 16th, 1889, and signed by the clerk of the city court. The regular term of the court was the first Monday in August. The defendant, by its counsel, appeared at the regular term and moved to dismiss the case because the process was void. On motion of plaintiff’s counsel, the court allowed the process to be amended ; and to this ruling the defendant excepted pendente lite and assigned error thereon. The trial was had, and the jury returned a verdict for the plaintiff’. The defendant moved for a new trial on the grounds set out in the motion, which was refused, and it excepted.
The ruling in Lowrey v. Richmond & Danville R. Co., 83 Ga. 504, does not conflict with the ruling in this
But it is claimed by the railroad company that it could not deliver the goods to Benson & Co. because its contract of carriage with the shipper exempted it from liability from “wrong carriage or wrong delivery of goods that are marked with initials, numbers or imperfectly marked”; and that as these goods were simply marked 8005, the l'ailroad company was not liable because it did not deliver them. We think that if the railroad company had delivered them to somebody else who had a bill of lading for a package of goods marked 3005, it perhaps would not have been liable; but as it diclmot deliver them to any one, and refused to deliver them to Benson & Co. when demanded upon their bill of lading, we do not think this clause in the contract applies.