Savannah, Florida & Western Railway Co. v. Talbot

123 Ga. 378 | Ga. | 1905

Evans, J.

(After stating the facts.) 1. The right of the railroad company to collect its transportation charges is dependent upon whether the person who started the shipment of the mare from Columbus to Yaldosta had authority to direct such shipment. It is contended that Leonard Johnson, who was in charge of the mare when it left Rochester, New York, was clothed by the consignor with apparent authority to direct this shipment from Columbus to Yaldosta. The bill of lading which the New York Central and Hudson River Railroad Company issued to Foster stated that there was a man in charge of the “horse.” This man was Leonard Johnson, and it is inferable from the evidence and the agreed statement of facts that he had no authority over the mare except to feed, water, and look after its general welfare while in transit. It is true that he had possession of the bill of lading, but that bill of lading authorized a delivery to the consignee without its production. It was the duty of the carrier to deliver the mare to the consignee, and it'was liable for a delivery to any other person than the consignee named in the bill of lading or his authorized agent. When the mare arrived at Columbus it was not delivered to the consignee, Talbot, but, without his knowledge or authority or consent, was reshipped over the line of defendant’s road and its connecting carriers. The delivery to Johnson at Columbus was wrongful, and Johnson’s possession was that of a wrong-doer. He had no authority either to receive the mare or to continue the shipment from Columbus to Valdosta. His surrendering the bill of lading in his possession to the initial carrier at Columbus and directing that the mare be shipped to Valdosta was without the knowledge or consent of either the consignee or the owner. ( A carrier acquires no right, by virtue of its employment as such, to hold the goods delivered to it by a wrong-doer to whom they do not belong, until the charges are paid, against the claim of the true owner; and therefore it has no lien upon them, but must, on demand, surrender them to the owner. Hutch. Car. § 491. This rule is based upon that universal principle that no one’s property can be taken from him withou^his consent, expresjedjqr implied. It is not a harsh rule as applied to common carriers, for the reason that the carrier has the right to demand of the consignor the transportation charges in advance. When a carrier receives goods for shipment from one who has ¿either title nor rightful possession, the true owner may reclaim his goods wherever found. The right of a connecting road is no better than that of the initial carrier, in the collection of its freight charges, even though it may have received the goods in good faith and without notice that the consignor’s possession was wrongful and fraudulent. The liability in such case is on the principle that the true owner of personal property has the right to the possession of his property which has been fraudulently taken from him, even though it be found in the possession of an innocent purchaser. And in such cases the true owner is not liable for any expenses to which the person in possession may have been put, either in the purchase of the property or otherwise^ The evidence in this case authorized the finding that the possession of Johnson, who started the shipment from Columbus to Valdosta, was tortious, and that the shipment was made without authority from either the consignee in Columbus, or the plaintiff, who resided in Valdosta^ It follows, therefore, that the defendant is not entitled to its freight charges, however reasonable they may be, and that it has no hen therefor. It was not error for the court to permanently enjoin the collection of the charges by sale under the provisions of the code.

2. The plaintiff in error further contends that the judgment of the court is erroneous, for the reason that the evidence disclosed that the plaintiff had an adequate and complete remedy at law by an action of trover. If the defendant desired to avail itself of the objection that the owner had gone into a court of equity and invoked the aid of that court, when his remedy at law was complete, it should have done so by appropriate demurrer. It can not submit the determination of the case to a court of equity, and, after an adverse judgment, for the first time raise the point that the plaintiff has not pursued the proper remedy. The only prayer in the petition was for injunction. The only issue submitted to the court by the pleadings was whether, under the facts, the plaintiff was entitled to relief by injunction. The failure of the railroád company to demur at the proper time, and the trial of the case by the judge without a jury, amounted to a consent that the issue made by the pleadings should be determined in that manner; and it is now too late, after the case has been decided, to raise the question that the plaintiff’s legal remedy was ample, and that there was therefore no necessity to invoke the extraordinary powers of a court of equity. See Hay v. Collins, 118 Ga. 247-8.

Judgment affirmed.

All the Justices concur, except Simmons, C. J., absent.