17 Ga. App. 162 | Ga. Ct. App. | 1915
The suit was for damage to personal property alleged to have been shipped from New York in the early part of October, 1913, and brought to Macon, Ga., about the 21st day of that month. As appears from the petition, the defendant is the last of the connecting line of carriers which handled the shipment in transportation. It is apparent therefore that the petition was based upon the “last-connecting-line” statute of this State (Civil Code, § 2752). The defendant filed a general demurrer to the petition at the first term, and later amended its demurrer and filed a motion to dismiss the action, upon the ground that it could not be maintained under the statute cited above, because the action concerned an interstate shipment originating in the State of New York, and that the statute is repugnant to the act of Congress of February 4, 1887, known as the Hepburn act, and the Carmack amendment thereto of June 29, 1906. It is contended that the act of Congress supersedes all State regulations, and that the shipper is relegated to a suit against the initial carrier. The court
The defendant in error contends that the question raised by the bill of exceptions was decided adversely to the contentions of the plaintiff in error in Atlantic Coast Line Railroad Co. v. Thomasville Live Stock Co., 13 Ga. App. 102, 111 (78 S. E. 1019). In Ohlen v. A. & W. P. R. Co., 2 Ga. App. 323 (58 S. E. 511), it was held: “A° common carrier, sued on its common-law liability for loss or injury of goods received by it for transportation, may relieve itself of liability by showing that the goods were damaged before it received them. Where it does not appear either that the carrier received the goods as in bad order or that they were in bad order when received, the presumption is that they were in good order, and the burden of proof is upon such carrier to show that it was free from negligence, and that its negligence did not cause or contribute to the damage.” This states a well-settled principle of presumptive evidence, which, in many States was by statute made a presumption of law; but no Federal question was raised in that case. In the Thomasville Live Stock Company case, supra, the de- • cisión was based upon the proviso of the Carmack amendment to the Hepburn act, section 20, that “nothing in this section shall deprive any holder of such receipt or bill of la'ding of any remedy or right of action he has under existing law.” In deciding that case this court proceeded upon the theory that this proviso itself preserves such rights of action as that conferred by section 2752 of the Civil Code. Speaking for the court, Judge Pottle, after stating that “the act itself contains a provision that nothing in it ‘ shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he has under existing law/” says: “Here is an express declaration by Congress, preserving to the shipper all remedies existing under State laws; and this, of course, must mean all remedies which are not in conflict with that prescribed by the national act.” And he then proceeds to argue that section 2752 of the Code is not a regulation of interstate commerce repugnant to the commerce clause of the constitution of the Hnited States, and calls attention to the fact that in the act of Congress there is no provision that a suit against the initial carrier shall be the exclusive remedy for the injured shipper, and holds that there is nothing in the act to prohibit a shipper from proceeding against
Speaking of the effect of the amendment, Justice Day, in St. Louis Southwestern Ry. Co. v. Alexander, 227 U. S. 218 (33 Sup. Ct. 245, 57 L. ed. 486, Ann. Cas. 1915B, 77) said: “The provisions of the amendment had the effect of facilitating the remedy of the shipper by making the initial carrier responsible for the entire carriage.” And in Atlantic Coast Line Railroad Co. v. Riverside Mills, 219 U. S. 186 (31 Sup. Ct. 164, 55 L. ed. 167, 31 L. R. A.
Analyzing section 20 it (1) affirmatively requires the initial carrier to issue “a receipt or bill of lading therefor” when it receives “property for transportation from a point in one State to a point in another:” (2) such initial carrier is made “liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it;” (3) it is also made liable for any loss, damage, or injury to such property caused by “any common carrier, railroad or transportation company, to which such jnoperty may be delivered, or over whose line or lines such property may pass;” (4) it affirmatively declares that “no contract, receipt, or regulation shall exempt such common carrier, railroad, or transportation company from the liability hereby imposed.” It therefore seems plain that Congress has taken complete' possession of the subject of an interstate carrier’s liability for shipments, and that consequently section 2752 of the Civil Code, a statute similar in so far as the subject-matter to which it relates is concerned, but wholly repugnant in remedy provided, must yield precedence to the Federal enactment. The instant case is brought clearly under the connecting-line statute of Georgia. The Georgia law provides that the shipper may sue the last connecting carrier, and such carriers “shall settle among themselves the question of ultimate liability.” The Federal law provides that the shipper shall sue the initial carrier, and the carriers shall settle among themselves the question of ultimate liability. In a state of such repugnancy it would seem to us