Allen v. Southern Railway Co.

Jenkins, P. J.

1. “The consignee of property delivered by another to a common carrier for shipment is presumed to be the owner, and presumptively a right of action exists in his favor for any injury or damage to the property in transit; but the presumption that the consignee is the owner may be rebutted, and where it appears that the consignee has no general or special property in the goods shipped, and incurs no risk in their being transported, he can not maintain an action ex delicto for the loss of, or for any damage to the property. . . Where the consignor makes a contract with a common carrier for the shipment of goods which belong to. the consignee, the former may recover in assumpsit for a breach of the contract, and the latter may recover for any loss or any damage to the property, and a recovery by either of the full amount of damage caused by the carrier would bar a recovery of such damage by the other. . . There are many cases holding that though the consignee may not be the real owner, if he has a special interest in the property shipped, he may maintain an action for the loss, or for any damage to such property in transit, and in such action may have a recovery of the full value of the property where lost, or full amount of damages to the property where it is damaged. . . ‘The ownership need not be extensive, and an agent, factor, broker, bailee, or other person havingrrights in the property to be protected, may maintain an action, and recover both for himself and the general owner.'" Southern Ry. Co. v. Miko, 136 Ga. 272, 273, 274 (71 S. E. 241). In the instant case, while the consignor had reserved title to the injured property rinder retention-of-title notes, the consignee vendee, having paid to the consignor vendor $200 of the purchase-price of the machinery, of the value of $600 at the time and place of injury, had such a special property and interest as would sustain a right of action against the carrier for its injury. See Civil Code (1910), § 4482; Brown Shoe Co. v. Chattahoochee Lumber Co., 121 Ga. 809 (3) (49 S. E. 839); Emanuel County v. Thompson, 3 Ga. App. 225 (59 S. E. 603). See also Ryals v. Seaboard Air-Line Ry. Co., 158 Ga. 303, 32 Ga. App. 453 *210(123 S. E. 12, 733). It appears from the record that after the injuries sued for, the property was sold by the consignor vendor “before the court-house door in Monroe county for $410,” in a sale “on the foreclosure of the retention-of-title notes.” While the consignee vendee, under the rule stated, might “recover both for himself and the general owner,” holding in trust for the latter its portion of the recovery, the amount realized by the vendor under its forclosure proceedings would, however, be chargeable against its interest, and should be deducted by the jury from such amount as they might, under the evidence, determine to be the market value of the property at the time and place of injury, if they should find for the plaintiff. No question here arises as to any assignment of the cause of action, or as to any conflicting right or claim by the consignor vendor.

2. The plaintiff consignee sued in tort for the recovery both of an item of expense, amounting to $6, incurred on account of damage to the axle of a locomotive, alleged to have been damaged by the defendant’s negligence as a common carrier while the machinery was in transit loaded on a flat ear, and on account of alleged damage to the property after its arrival at destination and before unloading. The trial court granted a nonsuit, to which the plaintiff excepts. There is no cross-bill of exceptions by the defendant carrier to the order overruling its demurrer to the petition, and no question is raised as to any misjoinder; and that order is the law of the case. The jury being authorized to find, under the presumption against the common carrier, that the axle was broken by its negligence while the property was in transit, it was error as to this item of damage to grant a nonsuit.

(a) “In all cases necessary expenses consequent upon the injury done are a legitimate item in the estimate of damages.” Civil Code (1910), § 4505. It is unnecessary to show that an item of such expenses has been actually paid. It is enough that an actual legal liability therefor has been incurred. Murphey v. Northeastern Construction Co., 31 Ga. App. 715 (3); 17 C. J. 805, 806, 803. In the instant case testimony of the plaintiff that the consignor “charged” the plaintiff “six dollars for repairing the axle,” and that, while this amount was yet unpaid, “I have got to pay him,” was sufficient to authorize a recovery therefor against the defendant.

3. “A warehouseman is a depositary for hire, and is bound only for ordinary diligence.” Civil Code (1910), § 3503. It is the statutory rule in this State that “in all cases of bailment after proof of loss, the burden of proof is on the bailee to show proper diligence.” Civil Code, § 3469. The word “loss,” in this section, has been construed to-mean injury or damage to the goods as well as their- destruction or disappearance. Richmond & Danville R. Co. v. White, 88 Ga. 805, 813 (15 S. E. 802). The State statutory rule as to the burden of proof in bailments is applicable to intrastate shipments such as in the instant case, although, under the ruling of the United States Supreme Court, a different rule prevails as to interstate shipments. Central of Ga. Ry. Co. v. Owens, 28 Ga. App. 140, 142, 143 (110 S. E. 339); Davis v. Pearlman, 29 Ga. App. 12 (1) (113 S. E. 44); So. Ry. Co. v. Prescott, 240 U. S. 362 (36 Sup. Ct. 469, 60 L. ed. 836).

(a) “Where goods are shipped by railway, and arrive at their destination *211within the usual time required for transportation, and are there deposited by the company in a place of safety and held by them ready to be delivered on demand, their liability as common carriers ceases (unless the custom of the trade is shown to be otherwise as to delivery), and that of warehouseman begins.” Southwestern R. Co. v. Felder, 46 Ga. 434, (1); Civil Code (1910), § 2730; Kight v. Wrightsville R. Co., 127 Ga. 204 (1, 3) (56 S. E. 363). “The carrier, in addition to its compensation for the carriage of goods, has the right to charge for their storage and keeping, as a warehouseman, for whatever time they remain in its custody after reasonable opportunity has been afforded the owner to remove them. . . Where the carrier’s duty ends with the transportation of the ear and its delivery to the customer’, and no further service is embraced in the contract, the carrier, after a reasonable time has been allowed for unloading, is as much entitled to charge for the further use of its ear as it would be for the use of its warehouse;” Miller v. Ga. R. Co., 88 Ga. 563, 572 (15 S. E. 316, 18 L. R. A. 323, 30 Am. St. Rep. 170). Ordinarily, “where a railroad company has transported a carload of goods and notified the consignee of their arrival, the delivery is complete when the agent of the consignee verifies the goods in the car and gives his receipt for the same;” and “where the agent of the consignee removes most of the goods, but leaves some in the car on account of approaching night, and the car is broken open after having been closed and sealed by the agent of the railroad company, and some of the goods stolen therefrom, the railroad company, if liable at all, is liable only for gross neglect, as a gratuitous bailee.” Kenny Co. v. Atlanta & West Point R. Co., 122 Ga. 365 (50 S. E. 132). Where, therefore, freight has been paid, a receipt for the shipment given by the consignee or his agent; and the delivery is completed without any relationship whatever existing between the consignee and' the railroad either as a common carrier or as a warehouseman for compensation, the carrier, by the mere voluntary assistance of its agent in closing or sealing the ear, where no storage or demurrage is charged or chargeable, becomes at the most no more than a gratuitous bailee. But where, even though the duty of the railroad as a' common carrier may have terminated, it expressly or impliedly assumes the duties of a warehouseman in relation to a car in which goods are stored, so that, under the statute or rules of the public-service commission, it becomes entitled to charge storage and demurrage for the use of its ear after the expiration of free time, it is liable, in case of injury to the goods, not for gross neglect as a mere gratuitous bailee, but as a warehouseman for any lack of ordinary care; and in such a case, after proof of the injury, the burden is on the carrier to show proper diligence. Under the particular evidence for the plaintiff in the instant ease, the jury were authorized, though not compelled, to find that the breaking of the axle of the machinery shipped was due to the negligence of the defendant as a common carrier; that the necessity of removing and repairing this axle prevented the plaintiff consignee from promptly removing the goods from the ear before their injury; that the consignee, through his agent employed to unload the freight, paid the freight and receipted for the shipment without knowledge that the previous negligence of the defendant in breaking the axle of the machine would *212prevent its prompt unloading; that the freight was received for unloading under such a mistake as to the facts; that the railroad, with knowledge of these facts, while the axle was being repaired so that unloading could be practicably effected, permitted the car to remain with the goods thereon on its side-track, without any protest, from December 16 to January 5, and by its freight agent, at the place of destination agreed to look out for the freight so that it would not be damaged by being struck by trains coming on the siding. The jury were thus authorized to find, even if they should have found that liability of the defendant as a common carrier, under the particular facts developed by the plaintiff’s testimony, did not exist, that the defendant was nevertheless a warehouseman for hire. Under this view of the case, the burden being upon the defendant after proof of the injury and damage, it was error to grant a nonsuit. See Savannah & Statesboro Ry. Co. v. First Nat. Bank, 25 Ga. App. 529 (103 S. E. 887).

Decided December 15, 1924. Rehearing denied Febbuary 11, 1925.

4. The court did not err in excluding a letter offered by the plaintiff, purporting to be signed by a person as “freight-claim adjuster” after the alleged injuries, and containing a statement to the effect that the defendant had caused the fall of the machinery from the ear; there being no evidence to identify the person writing the letter as an authorized agent of the defendant, or showing that it was written in the scope of his duties as such an agent. Torbet v. Cherokee Ins. Co., 141 Ga. 773 (2) (82 S. E. 134); Amicacola Marble Co. v. Coker, 111 Ga. 872 (36 S. E. 950); Wilcox v. Hall, 53 Ga. 635 (4); Atlas Assurance Co. v. Kettles, 144 Ga. 306 (4) (87 S. E. 1).

Judgment reversed;

Stephens and Bell, JJ., concur. Claude Christopher, for plaintiff. Harris, Harris & Popper, Samuel Rutherford, for defendant.