24 Ga. App. 742 | Ga. Ct. App. | 1920
Where in a suit by a shipper against a common carrier for loss or damage to goods in transit it appears from the evidence that some of the goods were not totally damaged or destroyed, but were of some value, and the evidence fails to furnish sufficient data from which a jury might infer the value of the damaged articles, the verdict is without evidence to support it.
(a) Plaintiff brought suit against the defendant, a common carrier, for failure to deliver in good condition a shipment of eggs, alleging a total destruction of a part of the shipment; and it appearing from the evidence that some of the eggs, for the value of which the suit was brought, were totally destroyed, and others partially destroyed but retaining some value, and the evidence failing to show how many were totally destroyed or how many partially destroyed, and failing further to show the value of such partially damaged eggs, which should be credited against plaintiff’s claim for a total damage, the evidence is insufficient to support a verdict covering damages for eggs both totally and partially destroyed.
2. It was error on the part of the trial judge to instruct the jury that the burden was upon the defendant carrier to prove the value of the eggs partially destroyed.
3. Failure or inability on the part of .the shipper to convert into money such partially damaged eggs would not affect the defendant’s right to have credit for their value.
4. Properly construed, the suit was one in tort, and a verdict for interest on the amount found was contrary to law. Western & Atlantic Railroad Co. v. McCauley, 68 Ga. 818.
Judgment reversed.
