64 Ga. 88 | Ga. | 1879
The declaration alleges that the defendant is a corporation of this state, having its principal place of business in the city of Savannah, and has damaged the plaintiffs two hundred dollars; that the defendant was and is engaged in the business of canalage, affording, by means of its canal, transportation from the river Ogeechee to the river Savannah, and to and from intermediate points, charging and receiving certain tolls; that it has attached to and connected with its canal certain ponds used as booms, for the safekeeping and custody of such timber as may be delivered to it, charging and receiving compensation for the boomage or safe-keeping; that the plaintiffs, in the year 1876, on divers days (specifying them) delivered to it certain described timber of the value of $106.37, for safe-keeping in said booms; that by reason of the carelessness and negligence of the defendant, its agents and servants, said timber has been wholly lost to the plaintiffs; and that “the said defendant, though often requested, has refused and still doth refuse to deliver to your petitioners the said timber or any part thereof, or to pay the value thereof ;” wherefpre process is prayed, etc. The defendant pleaded not guilty, and “ ultra vires.”
At the trial, the court, on motion of the defendant, ordered a nonsuit, holding the plaintiffs’ evidence insufficient to make a prima faeie case for recovery. Whether or not this adjudication was erroneous, is the question made by the writ- of error.
One of the plaintiffs testified to the description, ownership and value of the timber lost. It constituted a part of three rafts brought to Savannah over the defendant’s canal, one of which was left in the canal and the other two were placed in the basins. No arrangement for care and custody was made between the parties. The defendant has nothing to do with the transportation of timber over the canal, except to keep the canal and locks open, the care and
A clerk of the plaintiffs testified that the basins are from 150 to 300 yards from the lock-house where the lock-keeper resides. Upon the arrival of timber near the lower lock, it is regularly inspected by sworn inspectors, who give the lock-keeper the name of the owner, number of pieces, and the dimensions, and he makes entries accordingly in his book; it is by this means that he knows what to charge and from .whom to collect. Timber is put in the basins, sometimes by the owners, sometimes by the 'Canal company. No receipt is required or given. An order is given to the
Another person, a timber dealer, and familiar with the trade testified, that an account of the timber brought down the canal is given by the inspectors to the lock-keeper. The defendant has control over the location of timber placed in the basins, and the lock-keeper can place it where he pleases. It is usually inspected in the basins, and is cut loose so as to be turned over, and then fastened by pinning the outside sticks, but not securely. The dockage or boomage has been charged and received by the defendant for years on timber remaining over fifteen days in the canal or the basins. The price is about the same as at the river booms. These latter charge 15 to 20 cents per M feet per month. At them there is tide-water, and a watchman is employed, and the timber tied, but in the canal basins there is no tidewater ; the banks prevent the timber from getting away or being stolen. It could not be removed except through the locks. There is no watchma.n at the canal basins — the lock-1 keeper is about 150 yards from them. Witness has known timber passed through the locks by mistake — that is, the timber of one party was allowed to pass as the timber of another — such taking was by the servants of the factor who had the sale of the timber. The canal company has noth ing to do with the custody or control of timber while it is being transported over the' canal.
Did this evidence make a case ? We think not. Accora
Judgment affirmed.