Southern Railway Co. v. Edmundson

Evans, J. (After stating the facts.) The plaintiff’s suit was based upon the negligence of the defendant’s agents. It was alleged, first, that the “agents, servants, and employees” of the defendant had misappropriated her baggage to their own use. It was further alleged that the defendant was guilty of a breach of duty in failing and refusing to deliver the valise and contents to the petitioner. Counsel for plaintiff in error insist that these two allegations should be construed together, and that in effect the petition alleged the liability of the defendant was because of the fraudulent misappropriation of the baggage by the defendant’s agents and employees, and that the evidence wholly failed to sustain this charge. We can not agree with the counsel in their construction of the plaintiff’s petition. The suit was for the failure to deliver the baggage. This was alleged to have been as the result of defendant’s negligence. The further allegation that the baggage had been misappropriated by the defendant’s employees was a statement of an additional reason why the defendant failed to deliver. Construing the petition, therefore, as a suit for failure to deliver baggage, the evidence authorized the plaintiff to recover its proved value. While under the facts the defendant most probably was not liable as a carrier, because of the lapse of time after the arrival of the baggage before the demand upon the agent, it certainly was liable to the plaintiff as a warehouseman. Ga. R. Co. v. Thompson, 86 Ga. 327. The defendant’s possession of the baggage and the plaintiff’s demand [477] for the same are admitted. “Where there is a total default to deliver the goods bailed, on demand, the onus of accounting for such default is on the bailee.” Rome Railroad v. Wimberly, 75 Ga. 320; Civil Code, §2896. The defendant company was bound to account for the valise and to show how it left its custody; The evidence which it submitted established that it was grossly negligent. It had put the baggage in a room which was frequently left open during the day under no proper surveillance by any of its agents. The valise was a cheap one, and the agent treated it contemptuously by kicking it out of his way, instead of exercising proper diligence in putting it in a place of safety. There was a failure by the railroad company to exercise proper care in the protection of the plaintiffs baggage, and its loss occasioned by the lack of such care rendered the defendant liable to the plaintiff. Judgment affirmed. All the Justices concur, except Simmons, O. J., absent.