Almand v. Georgia Railroad & Banking Co.

Simmons, Chief Justice.

Goods consigned to the plaintiff over the defendant’s-railroad Avere unloaded into its depot at the point of" destination on the afternoon of their arrival, and on the folloAving morning Avere consumed in a conflagration Avhich destroyed the depot; and this action Avas brought in a justice’s court, to recover for their Avalué. Judgment was rendered in favor of the plaintiff, and upon certiorari by the defendant the judge of the superior-court sustained the certiorari and rendered final judgment in favor of the defendant; AA7hercupon the plaintiff excepted, alleging that the court erred (1) in holding the defendant not liable, and (2) in rendering final judgment and not sending the case back for a neAV trial in the justice’s court.

1, 2. If the relation of the railroad company to the-consignee at the time the goods Avere destroyed Avas still that of a common carrier, the company was liable as an insurer, and no excuse Avould avail it, the loss not having-been occasioned by the act of God or the public enemies-of the State (Code, §2066); but if the relation of the company had changed to that of a Avarehouseman, it was not liable unless it failéd to exercise ordinary diligence for the protection of the goods. Under the evidence in the record, the defendant could not, according: to the rule laid down in Southwestern R. Co. v. Felder, 46 Ga. 483, be held liable as a common carrier. In that case it was held that where goods shipped by rail arrive-at destination within the usual time required for transportation, and are there deposited by the railroad company in a place of safety and held ready to be delivered-to the consignee on demand, the company’s liability as-a common carrier, in the absence of a contrary custom of trade as to delivery, ceases, and its liability as a warehouseman begins. (See also Western & Atlantic R. Co. v. Camp, 53 Ga. 599.) It was contended that the shipment in the present case did not fall within the operation of this rule, because the goods did not arrive within-the usual time required for transportation. It appears,however, that they were shipped from a qioint beyond the defendant’s railroad, and it does not appear upon-what contract they -were received by the initial carrier, or that the defendant had any connection with such contract; nor was there any evidence showing when or where the delay was in fact caused. Upon these facts alone, a finding that the delay was chargeable to the fault or negligence of the last company receiving the goods would not be warranted. East Tenn., Va. & Ga. Ry. Co. v. Johnson, 85 Ga. 497.

3. But even upon the theory that the defendant’s relation to the consignee at the time of the loss was merely' that of a warehouseman, the burden-was upon it to show that it exercised due diligence as such (Code, §2064), and there was evidence from which it could be inferred that the loss was occasioned by negligence on the part of the defendant. There being, therefore, issues of fact involved, which ought to be passed upon by a jury, it was error, in sustaining the certiorari, to also render final judgment in favor of the defendant. #

The judgment of the court below is reversed, with direction that the case be remanded for a new trial in the justice’s court.