14 Ga. 277 | Ga. | 1853
By the Court.
delivering the opinion.
The object of this proof was to show a tender of the freight due for the transportation of the rope. And the objection to the evidence is two-fold. First. Because the witness did not state, as he ivas requested to do, whether or not he actually demanded the rope of Terhune. the agent of the road. The an
By reference to the Act of February, 1850, (.Pamphlet 44) it will be seen that this practice was in strict and literal conformity with its provisions. It declares that all misnomers in writs on the civil side of the Courts, shall be corrected instanter, without working any delay to the party making the same.
Such is not our understanding of the remark which foil from
It will be perceived that this is not even the ordinary notice which is usual in our large cities, that merchandize has been received at the Company’s depots for such and such consignees, naming them. It is a bare notification, that if the articles are not taken away within 'a given time after their arrival they will bo sent to a ware-house and stored at the expense of the owner.— We are clear that such a proceeding is not only unjustifiable, but totally unavailable to protect the Company from liability.
A common carrier, and such is this Company, is bound not only safely to convey, but safely to deliver a parcel at the place to which it is directed. Carriers are constantly endeavoring to narrow their responsibility, and to creep out of their duties. And I am not singular in thinking that their endeavors ought not to be favored — especially at this day, when the public are left almost without option or election in selecting.
The Law applicable to common carriers is sufficiently rigorous ; and I have no desire to enlarge the already heavy responsibility of those engaged in public transportation. Yet.there ought to be no vacillation in the decision of the Courts respecting principles founded in necessity, and in conformity with public policy.
Between Augusta and Rome, the transportation of merchandize and produce must be by the Rail Road, or not at all. We hold that it was the duty of this Company to have given to owners and consignees actual notice of the arrival of goods, or to have shown such a usage as would warrant the presumption that contracts wore made in reference to it.
But in this case there was no notice of any sort, cither by publication in the newspapers, or otherwise. But under that, which I have quoted, and which was, not that certain goods had arrived at their depot, but that all goods left there, would be removed after a given time, the agent at the end of twenty-six hours, sent off the rope to the ware-house of Sloan k Co.— And it is worthy of remark, that the computation of time was very close in this case. The clock, or watch, must have been eyed vigilantly. (And Rail Road chronometers are not often behind-time.) The rope reached Rome between one and two o’clock on the 28th of the month (October) and was sent off between the hours of three and four the day following.— This haste is sought to be explained, on account of the crowded condition of the depot. And yet there seems to have been room enough for any other article but this nineteen coils of rope. It will bo recollected too, that the drayman of Sullivan, Cabot & Co., on the evening of the same day when the rope
I am constrained to say, that these facts manifest a degree of captiousness unbecoming any public or private employee, from the Chief Magistrate of the Union, down to the lowest grades of agents in the service of our Rail Roads and other corporations. The people have a right to expect and demand kindness, civility, and a becoming consideration for their rights and feelings from alUwith whom they are compelled to transact business.
It is not insisted that Hightower demanded the rope of Terhune, when he called to pay the freight. The position assumed is, that the defendant having delivered the rope to a wrong person, namely, the ware-houseman, that this was in law a conversion.
This point is not without difficulty, for it is certainly true that if a common carrier deliver goods to a wrong person, although done even by an innocent mistake on Ms part, or by Ms being imposed upon, he will not only be liable to the true owner for the whole value of the goods ; but such wrongful delivery is in the Common Law, treated as a conversion of the property. (Stephenson vs. Hart, 4 Bing. R. 470. Duff vs. Budd, 3 Brod. & Bing. 177. Youle vs. Harlottle, Peake R. 68. Devereux vs. Barclay, 2 Barn. Ald. 702. Stephens vs. Elwell, 4 M. Selw. 259. Story on Bailments, § 450, 543, 570. Powers vs. Myers, 26 Wend. R. 591, 595.)
But tMs contemplates a case where the possession of the goods had passed out of the true owner into the hands of another claiming them as his own.
The strongest reported case to be found in the Books in fa
There the Captain of a Vessel in which goods had been shipped, left them in the hands of a wharfinger for the plaintiff’s mac; and he might have had them at any time by sending there and paying the wharfage. Tho Captain acted under the idea of the wharfinger’s having a lien on the goods for the wharfage fees, bec.ause the vessel unloaded against the wharf. Trover was brought by the owner against the Captain of the Vessel for the goods; and the only question was, whether there was evidence of a conversion to maintain the action.
Lord Kenyon, on the trial, was of the opinion, that as the Captain acted from an impression that the wharfinger had the right for wharfage fees, according to the usage of the port, there was no conversion ; and especially as the goods had been delivered to the wharfinger for the use of the defendant; and that the proper remedy was by action on the case. The cause was nevertheless permitted to proceed, reserving the point for the consideration of the Court.
The verdict was rendered for the plaintiff, and upon a rule to show cause why it should not be set aside, and a non-suit entered, tho Judges in Banc held, that as the wharfage was not due, and so tho jury had found, that it was clear that Trover would lio against the defendant.
Buller Justice, in delivering his opinion, laid much stress upon tho circumstance that previous to the landing of the goods, the plaintiff intending to convey thorn from the vessel himself, expressly directed the defendant not to land them on the wharf. And on this account, he thought the ease distinguishable from that of a misdelivery of goods, merely owing to a mistake.
But the fundamental difference between this case and the one at bar, is this : In the English case there was a demand and refusal. This is expressly stated in the Head Notes, and conceded in tho argument of counsel, both for and against tho rule. Here it is admitted there was none. Had Hightower, tho Clerk of the Plaintiffs demanded the rope, when he called to discharge the freight, we should not hesitate to maintain tho
While we hold then, that the defendants were chargeable for all the loss and injury resulting from the misdelivery of this rope, and that the delivery to the ware-houseman was a misdelivery, yet our judgment is, that a demand was necessary, before Trover would lie to recover the goods. And this conclusion will be found to be supported by the better, if not by the uniform authority of the Courts, and the Books.
Judgment reversed.