Southwestern Railroad v. Thornton

Hall, Justice. Another case growing out of the transaction which gave rise to this, has been twice before this court, and as it seems to us, effectually disposes of every question made by this record, as to the relative rights and duties of the parties to the contract for transportation. Bryant & Lockett vs. Southwestern Railroad, 67 Ga., 212; 68 Ib., 805. We are not impressed with the view that where one common carrier enters into a contract to transport livestock over its own road and a part of the road of another company which is under its control and management, and that damage is done to the stock while in the custody of the latter company, through its negligence and inattention, 65 the owner is confined to a suit upon the contract against the company making it for redress of his wrongs, and can ■ not maintain an action against the company inflicting the injury. The violation of any specific duty, whether it arises from the law or flows from relations created by contracts, express or implied, accompanied with damage, gives a right of action; and when the transaction partakes both of the nature of a tort and a contract, the party complainant may waive the one and rely solely upon the other. Code, §§2954, 2955 ; see in connection Ib., 2951; 49 Ga., 208 ; 52 Ib., 466. In this case the contract was made with the Central Railroad and Banking Company. No contract was made with the Southwestern Railroad Company, to which the stock was delivered in good order, and while in its custody was injured by the negligence of its agents and employes. It is not necessary to decide whether the plaintiffs had an action against the Central Railroad Company on account of this injury. It is quite sufficient for all purposes, to show that the other company was liable, and that the plaintiffs could elect against which of two joint wrong-doers they would proceed. Code, §3012 ; Graham vs. Dahlonega Gold Mining Company, September term, 1883, not yet published. The adjustment of damages between the defendants is no concern of the plaintiffs. The law makes ample provision for this. Code, §§3075, 3076. The only difference between this case and the others cited, is that in them the mules were carried beyond, and m this were stopped short of, the place to which they were consigned, in both instances the mules were taken out of the custody of the party appointed to take charge of their feeding, etc. The damages complained of were admitted to have been done after the mules were taken from the custody of this person. Judgment affirmed.