Wallace v. Rosenthal

40 Ga. 419

• Court: Supreme Court of Georgia
• Decided: December 15, 1869
• Status: Published

Opinion

McCay, J.

Various questions are made in this bill of exceptions upon the rulings of the Judge as to the admissibility of testimony, which we do not pass.upon, because we think that had the evidence been admitted, it would not have made out a defense against the claim of the plaintiff below.

Let it be admitted that the Western & Atlantic Railroad received these goods in good order at Chattanooga, brought them to Atlanta, and that the car containing them was switched off the track of that road upon the track of the Atlanta & West Point Road, and was taken charge of by the latter road. Let it be admitted, also, that, by the custom, of the roads, the Atlanta & YVest Point Road became responsible for the freight thus in their charge. Now add to this what also appears in evidence, to-wit: that by the custom of the roads goods are not receipted for until the checking clerks have compared the freight with the bills, and found all right, etc. Under such circumstances we do not think- that, under our law, the Western & Atlantic Road has relieved itself from the obligation it has taken upon itself by the proof. Section 2058 of the Code provides that in the case of through freight over connecting railroads, the last road receipting for the goods in good order, should be responsible to the owner for loss or damage of them. We do not say that the Western & Atlantic Railroad was bound to procure an actual receipt from the Atlanta & West Point Road, but it pas bound for the goods to the owner until, by the custom of the roads, it was entitled to such a receipt. This, it is admitted, was not, until there had been an examination by the mutual clerks, and the freight found all right. The'Object of the statute was to fix the “ receipt ” aS the evidence of delivery in “good order,” and protect the shipper from the expense and trouble of seeing settled just such disputes as perhaps exists in this case between the roads.

When the car is switched off, the road upon whose track it is becomes “ responsible,” not to the owner of the freight, but to the owner of the car; that road must take care of it, and if any damage happens, the road from which the car last came has its remedy. There is no delivery of the goods until, under the custom, the road to which they are delivered has given a receipt, or is, by the custom, bound to give it. This, as we understand the proof, is not until the checking clerks have examined the freight, compared it with the lists, and found all right. When this has been done the connecting road receipts for the goods, or is bound so to do. Until this takes place, we hold that the last road giving the receipt is bound to the owner. We think this, is, the meaning of the Code. These roads may make a custom good among themselves, -they may make themselves responsible to each other, but they cannot drive the shipper to litigate their controversies. By the law he is entitled to a receipt, or to such a performance by the last road receipting, as entitles him to a receipt from the next road. This, as the proof shows, the Western & Atlantic Railroad has not complied with; there had been no examination by the checking clerks, and no transfer.

Judgment affirmed.