132 Ga. 677 | Ga. | 1909
Lead Opinion
(After stating the foregoing facts.)
The controlling question is whether the plaintiff made out such a case as required its submission to the jury, or whether the presiding judge was authorized to direct a verdict. The plaintiff showed a shipment of household goods consisting of various articles mentioned, covered by a single bill of lading, and of which
In Smith v. New York Central R. Co., 43 Barb. (N. Y.) 225, it was said broadly that “The owner of goods, suing a common carrier to recover damages for an injury happening to the goods through negligence, must give evidence sufficient to show that the goods were in good condition when they came to the possession of the defendant, as a part of the evidence that they have been injured while in his custody.” But, in deciding what would be sufficient evidence for that purpose, it was held, that, “Where property is delivered to a railroad company, to be transported by that and another company over their respective roads to its .place of destination, it is enough for the owner, in an action
Counsel for the defendant-do not controvert the rule that proof of delivery of property in good order to the initial carrier for shipment, and of delivery of it by the final carrier in a damaged condition, will suffice to shift the burden of proof to the defendant, when the last carrier is sued; but they deny that this rule is applicable to a case like the present one, where separate articles were included in the shipment, and only some of them were delivered by the final carrier. The authorities have not drawn any distinction, as to this rule, between damage and partial loss; and the reasons on which the ruling as to delivery of property by the final carrier in a damaged condition rests, taken as a whole, warrant a like ruling as to partial loss of a shipment. In Susong v. Florida Central &c. R. Co., 115 Ga. 361 (41 S. E. 566), suit was brought against the final carrier of a car-load of stock, and the evidence showed that on delivery one horse was missing, and one was injured. The case as to both was treated as resting on the same basis; but the jury found for the defendant, and it was held that there was sufficient evidence to show that the loss and damage did not occur on the line of the last railroad company, and
On behalf of the defendant in error it was urged that the cases, if any, where partial loss could be analogized to damage should be confined to those in which goods were shipped in a car-load lot, or in a single box, bundle or package, or the like, and in which the receipt of the car or of the box, bundle, or package might carry some inference of the receipt of that which was in it when in the hands of the initial carrier; and that the rule has no application in this case, where the bed, washstand, dresser, and other articles were mentioned specifically in the bdl ot lading, and were not shown to have been fastened together or included in a single car-load, or even forwarded together. It was urged that delivery of some of the articles by the final carrier raised no presumption or inference that it received the other articles which were not delivered; and that, if it never received
What has been said shows that the judge erred in directing a Verdict, and renders it unnecessary to discuss the question of practice as to the grant of a nonsuit or the direction of a verdict if the plaintiffs evidence failed to make out a prima facie case, or as to the effect of the New York decision introduced in evidence.
Judgment reversed.
Dissenting Opinion
dissenting. In a suit for a breach of contract the burden is upon the plaintiff to establish both the contract and the breach. If a common carrier undertakes to carry goods over its line, it does so under a contract, express or implied, faithfully to perform the service undertaken. If no express contract is made, the mere fact of receiving goods to be carried will be a circumstance from which a contract will be implied. As will be seen from the eases cited by the majority, it has been held that if the last carrier of a line of connecting carriers delivers goods to the consignee in a damaged condition, the burden of proof will be upon such carrier if it would avoid liability for the injury. So, too, where goods are shipped in bulk, and the car or crate in which they were contained is delivered by the last carrier with some of the goods missing, the burden of proof will be upon such carrier. Such rulingg must rest on the theory that the fact that the last carrier was found in possession of the goods in a damaged condition, or that it was found in possession of the car or crate in which the goods in bulk ought to be, was in each instance a circumstance sufficient to show an undertaking by that carrier to carry the particular goods which were damaged or lost, and consequently connect the carrier with the contract of shipment, or .at least to show an implied contract by such carrier to transport the goods. But the reasons suggested do not apply to a shipment of the character involved in the present case, where the goods were