Speir & Co. v. Atlantic Coast Line Railroad

Court of Appeals of Georgia

Speir & Co. v. Atlantic Coast Line Railroad

140 S.E. 43, 37 Ga. App. 283, 1927 Ga. App. LEXIS 631

CourtCourt of Appeals of Georgia

DecidedOctober 14, 1927

Docket17950

StatusPublished

Cited by1 cases

This text of 140 S.E. 43 (Speir & Co. v. Atlantic Coast Line Railroad) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Speir & Co. v. Atlantic Coast Line Railroad, 140 S.E. 43, 37 Ga. App. 283, 1927 Ga. App. LEXIS 631 (Ga. Ct. App. 1927).

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Opinion

Jenkins, P. J.

George C. Speir & Company brought suit in trover against the Atlantic Coast Line Railway Company for the value of 69 bales of cotton linters, alleged to have been wrongfully converted by the defendant. It is alleged that the cotton linters sued for were shipped from Hopewell, ARrginia, to Clio, South Carolina, consigned to the order of the plaintiff, “notify A. J. Calhoun, Jr., at Clio.” It is alleged that the cotton linters were originally purchased by the plaintiff from Calhoun, and shipped to the Virginia Cellulose Company, at Hopewell, Virginia, which company rejected the shipment, and that the plaintiff then reshipped the cotton to itself at Clio, drawing on Calhoun for the original purchase price, with the bill of lading attached to the draft. The proof shows that when the car containing the cotton arrived at Clio the railway company’s agent notified Calhoun, who stated that he would not accept the shipment, and that Calhoun then wired the plaintiff that he would not accept the shipment or pay the draft. Subsequently the car was placed on a side-track on the right of way of the railway companjq adjacent to Calhoun’s premises, which track was used for the convenience of both Calhoun and the public. Upon receipt of notice from Calhoun that he would not accept the. shipment, the plaintiff sent to Clio its agent, Bickmore, who found the car on the side-track mentioned. Calhoun, in the presence of Bickmore, opened the car of cotton, and some samples were removed for the agent of the plaintiff. The testimony as to whether the agent of the plaintiff entered the car or not is in dispute, the agent contending that he did not enter the car, and did not consent to Calhoun opening the car. It does not, however, appear that the agent objected to the car’s being entered. Subsequently the car was removed from.the side-track and returned to the, freight depot of the railway company, where it was opened in the presence of Bickmore, Calhoun, and the agent of the railway company, and its contents checked. It was then found that all of the cotton originally shipped was in the car and accounted for. The testimony as to the condition of the seals on the car on its arrival [286]*286at Olio is in dispute; the defendant’s station agent testifying that the seal on one door of the car was broken and the car door fastened with nails when the car arrived, while the agent of the plaintiff testified that he was informed by the station agent that his seals record showed both seals intact when the car arrived. It appears, without dispute, that the seal on one door was broken when Calhoun entered the car in the presence of the plaintiff’s agent, and that the door was nailed up. After the car had been opened and .its contents checked, neither' plaintiff nor Calhoun would accept the shipment, and it was subsequently sold by the railway company for freight charges and purchased by the plaintiff. It is contended by the plaintiff that the railway company’s act in placing the car on its side-track, which Calhoun contended he had “first call” on, amounted to a conversion of the cotton by placing the shipment in the possession and control of Calhoun without the surrender of the bill of lading. Upon the close of the evidence, upon motion of the defendant’s counsel, the court directed a verdict in the defendant’s favor; to which action exception is now taken. While the plaintiff failed to offer any proof going to show that the side-track in question was a private siding under the control of Calhoun, it does except to the admission of testimony for the defendant by its station agent that the side-track upon which the car was placed after its arrival at Clio “is the right of way of the company; it is a public side-track.” Such testimony, it is contended, “was necessarily based upon hearsay or information secured by the witness from other sources than his own knowledge, and was not evidence of any deeds, contracts, private writings, or court records, such as was necessary in order to establish as a matter of law or prove as a matter of fact that the said side-track was the right of way of the defendant railroad company, or such a public right of way as that it lost its character as a private siding or private side-track.”

Judgment affirmed;

Stephens and Bell, JJ., concur.

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Jenkins, P. J.

George C. Speir & Company brought suit in trover against the Atlantic Coast Line Railway Company for the value of 69 bales of cotton linters, alleged to have been wrongfully converted by the defendant. It is alleged that the cotton linters sued for were shipped from Hopewell, ARrginia, to Clio, South Carolina, consigned to the order of the plaintiff, “notify A. J. Calhoun, Jr., at Clio.” It is alleged that the cotton linters were originally purchased by the plaintiff from Calhoun, and shipped to the Virginia Cellulose Company, at Hopewell, Virginia, which company rejected the shipment, and that the plaintiff then reshipped the cotton to itself at Clio, drawing on Calhoun for the original purchase price, with the bill of lading attached to the draft. The proof shows that when the car containing the cotton arrived at Clio the railway company’s agent notified Calhoun, who stated that he would not accept the shipment, and that Calhoun then wired the plaintiff that he would not accept the shipment or pay the draft. Subsequently the car was placed on a side-track on the right of way of the railway companjq adjacent to Calhoun’s premises, which track was used for the convenience of both Calhoun and the public. Upon receipt of notice from Calhoun that he would not accept the. shipment, the plaintiff sent to Clio its agent, Bickmore, who found the car on the side-track mentioned. Calhoun, in the presence of Bickmore, opened the car of cotton, and some samples were removed for the agent of the plaintiff. The testimony as to whether the agent of the plaintiff entered the car or not is in dispute, the agent contending that he did not enter the car, and did not consent to Calhoun opening the car. It does not, however, appear that the agent objected to the car’s being entered. Subsequently the car was removed from.the side-track and returned to the, freight depot of the railway company, where it was opened in the presence of Bickmore, Calhoun, and the agent of the railway company, and its contents checked. It was then found that all of the cotton originally shipped was in the car and accounted for. The testimony as to the condition of the seals on the car on its arrival [286]*286at Olio is in dispute; the defendant’s station agent testifying that the seal on one door of the car was broken and the car door fastened with nails when the car arrived, while the agent of the plaintiff testified that he was informed by the station agent that his seals record showed both seals intact when the car arrived. It appears, without dispute, that the seal on one door was broken when Calhoun entered the car in the presence of the plaintiff’s agent, and that the door was nailed up. After the car had been opened and .its contents checked, neither' plaintiff nor Calhoun would accept the shipment, and it was subsequently sold by the railway company for freight charges and purchased by the plaintiff. It is contended by the plaintiff that the railway company’s act in placing the car on its side-track, which Calhoun contended he had “first call” on, amounted to a conversion of the cotton by placing the shipment in the possession and control of Calhoun without the surrender of the bill of lading. Upon the close of the evidence, upon motion of the defendant’s counsel, the court directed a verdict in the defendant’s favor; to which action exception is now taken. While the plaintiff failed to offer any proof going to show that the side-track in question was a private siding under the control of Calhoun, it does except to the admission of testimony for the defendant by its station agent that the side-track upon which the car was placed after its arrival at Clio “is the right of way of the company; it is a public side-track.” Such testimony, it is contended, “was necessarily based upon hearsay or information secured by the witness from other sources than his own knowledge, and was not evidence of any deeds, contracts, private writings, or court records, such as was necessary in order to establish as a matter of law or prove as a matter of fact that the said side-track was the right of way of the defendant railroad company, or such a public right of way as that it lost its character as a private siding or private side-track.”

Judgment affirmed;

Stephens and Bell, JJ., concur.

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Bluebook (online)

140 S.E. 43, 37 Ga. App. 283, 1927 Ga. App. LEXIS 631, Counsel Stack Legal Research, https://law.counselstack.com/opinion/speir-co-v-atlantic-coast-line-railroad-gactapp-1927.

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