Evans & Ragland v. Atlanta & West Point Railroad

Jackson, Judge. This suit was brought for the recovery of damages to certain corn delivered at Saint Louis, Missouri, to a steamer, in apparent good order, to be conveyed by the steamboat to Memphis, and thence by the Memphis and Charleston Railroad, and other connecting roads, to LaGrange, Georgia. The corn was delivered to the plaintiffs, who were the consignees, at LaGrange, but was badly damaged. Suit was brought against the defendant, on the allegation that defendant was the last company which received the corn in good order, and was consequently responsible for the damage. 1, 2, 3. The bill of lading, with the indorsement of the freight agent of the defendant at Atlanta thereon, to the effect that the defendant received the corn from the Western and Atlantic Railroad in good order, was tendered in evidence and rejected, and the first question presented for review here is, was this indorsement by the agent, made some days after the corn passed through Atlanta, legal evidence to show that the [500] defendant received the corn as in good order, so as to charge it with the damages as the last company which received it? If it was the duty of this agent to investigate how the freight was received, whether in good or bad order, and to report that fact on the bill of lading on inquiry by the agent at LaGrange, then we think this indorsement would be made “dum jewel opus” — in the very work entrusted to him by the company — and being so made in the business he was employed to transact, his sayings or writings, which are but written statements, would be admissible; but in the absence of proof that this was in the line of his business — that it was his duty to investigate and report thereon — the written statement on the bill of lading would be but the sayings of the agent in respect to a past transaction, and' would not be admissible. In this case, the record does not disclose any proof that such investigation and report and indorsement was part of the business of this agent, and therefore the indorsement was properly rejected. In other states, there is some conflict in the authorities upon the subject, and also in the English Reports: 8 N. Y., 501, 509; 6 Gray, 450; 28 Eng. Com. Law, 275; 10 Eng. Law — all go to show that the sayings of the agents as to past transactions are admissible; but in Georgia, the question is not an open one. Section 2208 of our Code, and many decisions of this court, settle it beyond controversy: 6 Georgia Reports, 365; 19 Ibid., 416; 29 Ibid., 399, 461; 34 Ibid., 330; 26 Ibid., 111, and others. These Georgia cases and our Code confine the admissibility of the sayings of the agent to the business entrusted to him, and to the time while so employed, and exclude his sayings as to past transactions. In our state, they are admissible only upon the principle of being part of the “res gestee.” It is clear, therefore, that the court rejected the indorsement of this agent and of the other agents, properly, because they spoke or wrote about past transactions, and there was no proof that it was their business to investigate these transactions and write or make statements about them. 4. The indorsement upon the bill of lading made by the [501] agents of this company, and other companies connecting therewith, being properly rejected as evidence, no case is left for the plaintiffs except such as is made by the bill of lading, stripped of the indorsements, and the reception of the damaged corn at LaGrange. Its reception at LaGrange in a damaged condition, is certainly no proof that the defendant received the corn as in good order at Atlanta. True, there are authorities to this effect, but we cannot concur in the principle ruled or in the reasoning which led to it: See note to Angell on Carriers, 4th edition, section 202, and cases cited. No presumption, we think, can arise that it was received in good order at Atlanta, from the fact that it reached LaGrange badly damaged; if any presumption arose, it would seem the contrary, especially where, as in this case, the damage is hid from sight. 5. The whole case, then, is narrowed to this point: does the receipt that the corn was in apparent good order, given by an agent of a steamboat at St. Louis, to be carried by water to Memphis and thence by rail to LaGrange, furnish any evidence, actual or presumptive, that the defendant received the corn in good order, or in apparent good order, or as in good order, at Atlanta, Georgia? There is no evidence that the defendant was connected with the steamboat; that it Was engaged by any contract with it or other roads and it, so as to make the agent .at St. Louis who receipted the bill of lading for the steamer, in any sense the agent of defendant so as to bind the defendant. Our statute, section 2084 of the Code, makes the last company of oonneeting railroads liable; it is silent in respect to any connection with steamboats. And it appears to us that there is reason in this silence. Railroads are stationary, always to be found in the same place; steamboats may be in one water one year, and another year a thousand miles off. Whilst, therefore, it is just to the consignee, and not unjust to the railroad carrier, to make the last company responsible to the consignee, and force that company to go upon its connecting lines for indemnity, to put the onus upon such company to saddle the damage on the connecting. road which caused it, it would be hardly just to apply the [502] rule to a steamboat. The connecting road is immovable, it can always be found and sued ; the boat is movable, variable, changeable in location, and not so easily found or sued ; but we will not rule on this point. 6. Excluding the indorsements upon the bill of lading, there is no evidence that any of the connecting railroads received this corn in good order, or as in good order. If that fact had been proven, then the presumption would have arisen that the corn remained in that condition of good order from connecting road to connecting road until it reached defendant, and hence that it was received by defendant as in the good order in which it left the other roads and such presumptive proof would have been sufficient to carry the ease to the jury, and unless rebutted, to have authorized a recovery from the defendant. Such seem to be the authorities; and principle and practical good sense, and the convenience of the public, sustain them, we think. See 43 Barb., 225; 45 N. Y., 518; 28 Wis., 204. But this case, we think, breaks down from the fact that there is no positive proof that the defendant received this corn in good order, or as in good order, and no presumptive proof thereof by proof that any road with which it connected so received the corn, nor any proof that it received the corn from any other carrier. We must, therefore, after much deliberation and some hesitation, sustain the non-suit and affirm the judgment, there being no legal evidence to show how, or from whom, or in what condition, this defendant received the corn alleged to have been damaged, after the indorsements upon the bill of lading were ruled out or rejected as evidence. Judgment affirmed.