2 Ga. App. 36 | Ga. Ct. App. | 1907
Mrs. Johnson, the plaintiff: in the court below, agreed with Krauskoff Brothers & Co., of Savannah, Ga., to take a certain shipment of hats to her store; they insisting that she keep or buy all the hats in the shipment, but allowing her the privilege of returning to them such of the goods as she did not want. She’ took the goods on these conditions to her place of business and Icept them for some time, but finally decided to ship back to them the larger portion of the goods, packed them in boxes, and had them marked “K. B. & Co., Savannah, Ga.,” and delivered them to a drayman to take to the depot. The drayman swears that he delivered the goods to the agents of Krauskoff Brothers & Co. at the depot, and that he delivered them as he was accustomed to deliver such goods. The evidence of the plaintiff showed that she delivered the goods to the agents of Krauskoff Brothers & Co., and that these agents accepted them for shipment, but failed to furnish her with a bill of lading, receipt, or other evidence of delivery. Krauskoff Brothers & Co. not having received any of the goods, or any bill of lading or receipt of shipment, naturally insisted on payment for the entire shipment, and Mrs. Johnson, having failed
Learned counsel for plaintiff, in error insists that this action is', a suit in tort, and that for that reason the plaintiff was not entitled to recover, because it appears that she had no title to the goods that were lost. While particularity of pleading is not required in justice’s courts, we think it very clear that the suit is one on a contract of carriage arising from the transaction between the plaintiff as bailee- and agent for Krauskoff Brothers & Co., and. the defendant as common carrier. In the summons it is alleged’, that “all the articles named in said bill of particulars . . were turned over to said company by petitioner to be transported,” etc. p “’said railway company being a common carrier for hire,” etc., and “said railway company having failed to deliver the goods’ as agreed, between them and the shipper, the said Mrs. J. C. Johnson, at their destination, Savannah, Ga., as aforesaid.” We think that this alleges a contract, and asks recovery only for the breach of such contract; and it is only upon the theory that a contract was proved that the verdict can be sustained, for the plaintiff failed, to show that she had title’ to the goods in question, and, of course,, no one but the owner can recover damages in tort.
The plaintiff in error claims that there was no contract; and the evidence certainly discloses that there was no written contract, to carry the goods in question. It is insisted that the goods were-never received; that the evidence fails to show proper identification of the goods sued for, or their delivery to the company. The plaintiff in error further contends that the defendant in error had no right to her recovery in the court below, because she. had no title to the goods sued for. As to whether or not-there was delivery, and identification of the goods, and proof’ of their delivery to,..the carrier, these are questions of fact; and. the evidence .admitted, so far as this portion of the case is concerned, authorized the finding of the jury. Mrs. Johnson testified that she packed the hats in two boxes and saw her husband.
The real question in this case, then, is: Was a contract of carriage entered into between Mrs. Johnson and the carrier? No bill of lading, freight receipt, or other written evidence of a contract was put in evidence; and we must therefore determine from the’-circumstances appearing in evidence whether the defendant company made a contract to transport the goods in question. The evidence of the plaintiff discloses nothing on -this subject. She delivered the goods to a drayman, and she never received a bill of lading, and had no knowledge of what the drayman did with the ■goods after she turned them over to him. Her husband testified that the goods were delivered to the company’s agent, for he saw the boxes containing them at the depot, and called the attention •of the company’s agent, Lee Patterson, to the marking on the box, “E. B. & Co., Savannah, Ga.” The drayman testified that he ■delivered two boxes, marked “E. B. & Co.,” to the depot agent at Baxley. . He did not get a bill of lading that time, because he was in a hurry. It appears, therefore, that there was evidence to authorize the jury to find that the two boxes of hats were delivered by the, plaintiff to the company for shipment, and accepted by them. They were plainly marked “E. B. & Co., Savannah, ■Ga.,” and the testimony is undisputed that the goods for whose 'loss the suit is brought were contained in boxes marked “K. B. & 'Co., Savannah, Ga.” According to testimon3r which the jury was authorized’ to believe, there was nothing lacking to show an implied contract, and the terms of the contract. The point of destination -was plainly marked on both boxes, and when the railroad company received the goods without objection, under the evidence that it was quite usual not to make out bills of lading immediately, the company tacitly agreed to deliver them, either at destination ■or to a connecting carrier, to be transported to destination. The ■course of dealing evidenced a contract. The jury could well imply a contract from the acceptance of the goods for shipment, and that it was onfy through oversight that a receipt or bill of lading was not issued. So we do not think that the contention of plaintiff in error that this is an action in tort is sustained. In any event a common carrier can not dispute the title of the per