Central of Georgia Railway Co. v. Griner & Rustin

127 S.E. 878, 33 Ga. App. 705, 1925 Ga. App. LEXIS 698

• Court: Court of Appeals of Georgia
• Decided: April 15, 1925
• Docket: 15912
• Status: Published

Opinion

Jenkins, P. J.

1. Where shippers of live stock sued the carrier for damages on account of delay in transportation to the place of destination, and alleged loss in market value because the defendant liád failed to move the car by its afternoon train on a certain day and until the arrival of its afternoon train on the following day, whereby the arrival at destination was delayed from Saturday to the following Monday, the court did not err in overruling a general demurrer to the petition, based chiefly upon the g-round that the bill of lading provided that “no carrier is bound to transport said live stock by any particular train . . or in time for any particular market;” since the carrier was bound both by its general legal obligation (Civil Code of 1910, § 2773) and by an additional clause in the bill of lading to transport the shipment “with reasonable dispatch,” and it was for the jury to say whether the delay alleged was unreasonable. Flowers v. Ga. Northern Ry. Co., 32 Ga. App. 52 (122 S. E. 647); So. Ry. Co. v. Bloch, 18 Ga. App. 767 (1) (90 S. E. 656). Nor was the petition as amended subject to the special demurrers relating to the allegations of shrinkage in weight of the cattle during the shipment, and lack of proper care in feeding, watering, and looking after said stock, these being sufficiently set forth.

2. The verdict, finding for the plaintiffs in divisible items, “loss in weight in cattle $47.78, decline in price in delay $91.70, decline in price liogs $22.50,” total $161.98, was authorized under the evidence.

3. Since “the words ‘immediate shipment’ have been construed as equivalent to ‘reasonable promptitude,’ or ‘within a reasonable time’ ” (Columbia Smelting Works v. Dexter, 31 Ga. App. 627, 121 S. E. 844), there was no error in charging the jury in effect that if they should find that the stock was accepted by the carrier “for immediate transportation, and they failed to transport in accordance with their contract,” without sufficient reason for such failure to transport as agreed and in time, the verdict should be for the plaintiffs, the general legal obligation as well as the express requirement of the bill of lading being that the stock should be transported “with reasonable dispatch.” However, in view of the general popular acceptation of the term “immediate,” as importing swifter action than the terms “reasonable time” or “reasonable dispatch,” it would have been more accurate to use one of the latter terms.

4. The finding for the plaintiff on account of shrinkage in weight being authorized under the evidence, the judge did not err in submitting in his charge such issue to the jury.

5. While it was not admissible to establish a special contract with the carrier (Atlantic Coast Line R. Co. v. Wells, 130 Ga. 55, 59, 60 S. E. 170), or to vary the terms of the bill of lading, there was no error in admitting, as bearing on the issue of unreasonable delay, the testimony of one of the plaintiffs, “Before buying the cattle and hogs, 1 went to the agent and asked him if it was possible to get them into Savannah for the next morning’s market, and he told me it was,” notwithstanding the bill of lading provided that the carrier need not transport by any particular train or for any particular market. “Whether or not the delay in delivery was unreasonable is a question for the jury, and to be determined by them on all the facts of the case; ” and as a part of these facts they are authorized to consider “the information given by the shipper of peculiar reasons for a speedy transit and delivery.” Columbus Ry. v. Flournoy, 75 Ga. 745, 746 (2); So. Ry. Co. v. Bloch, supra.

6. A clause in the bill of lading, signed by both the shippers and the carrier’s agent, providing that it should be “subject to the classifications and tariffs in effect on the date of this agreement,” it was error to exclude material portions of the published tariff and classification existing at the time of the shipment, requiring that “Live stock in less carloads if not tied, or in mixed carloads, must be separated by means of strong partitions to be erected by the shipper at his expense and risk as follows: each . . bull . . must be separated from other animals . . Animals of each kind must be separated from animals of each other kind.”

7. Where, as here, under the contract of affreightment the shipper assumes the duty of loading a car of live stock at his own risk and subject to certain regulations contained in the bill of lading, requiring the separation of the hogs from the cattle, the carrier would not ordinarily be liable for damages incurred in transportation by reason of the failure on the part of the shipper to properly comply with the obligations which he has thus assumed. 10 Corpus Juris, 105. But even where the shipper is to do his own loading, the carrjer who ahcepts tlie freight for shipment assumes the obligations and liabilities of a common carrier (1 Michie on Carriers, 758; 10 Corpus Juris, 106, and notes; 4 Elliott on Railroads, 310); and in the absence of a false representation or deceitful conduct on the part of the shipper with reference to the manner of loading, the carrier, on issuing its bill of lading for the goods as in apparent good order, is presumed to acquire knowledge of any patent fault or delinquency in the manner of loading which a casual inspection of the freight thus tendered would render apparent (Central of Ca. Ry. Co. v. James, 117 Ga. 832, 838, 45 S. E. 223; Kinnick v. Chicago Ry. Co., 69 Iowa, 665, 29 N. W. 772); and where a shipment has been improperly and defectively loaded by the shipper in a manner which would subject it to risks and dangers in transportation, the duty devolves upon the carrier to refrain from transporting it until after such patent defects and deficiencies have been remedied- (Central of Ga. Ry. Co. v. Locketi, 4 Ga. App. 698, 701, 702, 62 S. E. 464); and this is true regardless of the previous issuance of its bill of lading for the loaded goods as in apparent good order. In other words, the acceptance of freight loaded by the shipper and the issuance of a bill of lading therefor, even though it contains the provision that the goods are received “in apparent good order,” does not impose upon the carrier the duty to transport the goods until they are in fact in a condition fit for transportation; and consequently the issuance of such a bill of lading does not operate as an absolute estoppel against the carrier, such as would prevent it from excusing- .a necessary delay in the movement of the freight occasioned by remedying the defects in the shippers work of loading. Accordingly, it was not a correct statement of the law to charge the jury in effect that the carrier would be unconditionally liable for damages incurred by the delay in the proper and necessary work of reloading the shipment, if it had issued its bill of lading for the goods as in good order without exercising- proper diligence in inspecting.

Decided April 15, 1925.

8. The carrier might be liable, however, for the loss occasioned by unreasonable delay, where it is made to appear that the carrier has been guilty of negligence in failing to make its inspection upon the tender of the freight and prior to the issuance of its bill of lading accepting the goods as in apparent good order, when they were palpably improperly loaded, and where, if such patent defect had been then and there discovered, the defect could have been remedied in time to avoid any' subsequent delay in the movement of the freight. In such a case, such negligence of the carrier might constitute the proximate cause of the subsequent delay in transportation. In the instant case this specific theory of liability, while sufficiently covered by the pleadings, was not contended for under the evidence adduced or dealt with in the charge of the court; and it can not be said that liability under this theory was indisputably shown so as to render harmless the erroneous excerpt from the charge actually, .given.

Judgment reversed.

Stephens and Bell, JJ., concur. A. 8. Bradley, Howell Gone, for plaintiff in error. Lanier & Lanier, contra.