36 Ga. App. 480 | Ga. Ct. App. | 1927
Charleston & Western Carolina Bailway Company brought suit against Smith Brothers Company to recover the_ amount of freight charges due after payment of an undercharge. The court directed a verdict in favor of the plaintiff and the defendants have brought the case here by direct exceptions. The assignments of error do not raise the question as to whether there were issues of fact which should have been submitted to the jury, but seek reversal solely upon the ground that the verdict was unauthorized under the pleadings and the evidence. See Gilliard v. Johnston, 161 Ga. 17 (129 S. E. 434). These were the facts: Cooperative Eederée de Quebec was the owner and shipper of a carload of hay, delivered to Montreal Bailway Company at St. Aime, Quebec, Canada, under a bill of lading issued by that company calling for delivery to the order of the shipper, notify J. J. Langley, at Plum Branch, South Carolina. The bill of lading was indorsed by .the shipper to Bank Dhochelaca, and by the latter indorsed to the order of the Merchants National Bank of Baltimore. It contained the following provisions: “It is mutually agreed, as to each carrier of all or any of said goods over all or any portion of said route to destination, and as to each party at any time interested in all or any of said goods, that every service to be performed hereunder shall be subject to all conditions herein contained and which are agreed to by the shipper and accepted for himself and his assigns. The surrender of the original order bill of lading properly indorsed shall be required before the delivery of the goods. Inspection of the goods covered by the bill will not be permitted unless provided by law or unless permission is indorsed on the original bill of lading or given in writing by the shipper.” “The owner or consignee shall pay the freight and average, if any, and all other lawful charges accruing on said property, and, if required, shall pay the same before delivery.”
Langley refused the shipment on its arrival at Plum Branch, and the car containing it remained there for several days on demur-rage. The original bill of lading, having been acquired by Southeastern Molasses & Hay Company, of Columbia, South Carolina, was surrendered by that company to the Charleston & Western Carolina Company, the plaintiff, for a reconsignment of the shipment, which was made under a new bill of lading issued by that railway company, at Plum Branch, in which Cooperative Federée de Quebec
In our opinion the defendants were not liable, and the verdict and judgment should be set aside. It has been stated broadly in many decisions, some of them by the courts of this< State, that a common carrier may collect freight charges on goods either from the consignor or consignee unless it has entered into a special contract binding itself to collect the charges from one of them only. Seaboard Air-Line Ry. Co. v. Montgomery, 28 Ga. App. 639 (112 S. E. 652); Southern Cotton Oil Co. v. So. Ry. Co., 147 Ga. 646 (95 S. E. 251). As to. interstate shipments this rule would seem to require some modification, in view of the decision of the Su
In St. Louis Railway Co. v. Republic Box Co., 12 Fed. (2d series), 441, decided by Judge Hutcheson of the southern district
Counsel for the defendant refer to the clause of the bill of lading that “The owner or consignee shall pay the freight . . before delivery,” and say that the defendants were owners of the shipment when it was delivered. Irrespective of what may be the effect of the quoted clause as between the carrier and the consignee (N. Y. Central R. Co. v. Ross Lumber Co., 234 N. Y. 261, 137 N. E. 324, 24 A. L. R. 1160), we can not agree that the defendants were owners in accepting the freight from the carrier’s warehouseman. As was said above, they were buying hay delivered, and it took delivery, either actual or constructive, to make them owners. Civil Code (1910), § 4125.
In L. & N. R. Co. v. Sloss-Sheffield Co., 269 U. S. 217 (46 Sup. Ct. 73, 70 L. ed. 242), the facts, as summarized in the 8th headnote, were as follows: “A manufacturer sold and shipped pig
Judgment reversed.