Bell Bros. v. Western & Atlantic Railroad

Evans, J. (After stating the facts.) 1. The bill of lading issued by the initial carrier plaj's an important part in the plaintiff’s case, whether the plaintiff relies on the count for the tort growing out of the breach of duty.arising under the contract, or on the count charging liability on the part of the defendant under the Civil Code, §2298, as being the last connecting carrier which received the goods as “in good order.” In the first instance, though the consignee be not a party to a contract of carriage between a, railroad company and a shipper, the consignee may make proof of such contract with a view to showing the company became liable to him for a failure to comply with its legal -duty as á common carrier 'to perform such contract; and in the latter case, the bill of lading is admissible to show receipt “in good order” of the goods by the initial carrier, and that they were to be transported over more than one railroad. The petition does not directly specify the consignor, but, as it does not contradict an inference of a shipment by the plaintiff firm, it was competent to show that the delivery of the cabbages was made to the initial carrier through an agent,-notwithstanding such agent made the shipment in his own name without disclosing his principal. Yet as the plaintiff bases the first count [513] of its suit upon a breach of duty arising out of a contract made in its behalf, it is bound by the terms of the contract, irrespective of the question whether its agent had authority to enter into a contract of that character. Central Ry. Co. v. James, 117 Ga. 832. The plaintiff can not rely on the contract, to raise a duty, and at the same time disaffirm the agent’s authority. If the consignor was without authority to make the contract of carriage, the plaintiff has ratified his act by predicating its suit upon a breach of duty growing out of that contract. Evidence of the consignor’s lack of authority to sign the contract of carriage was irrelevant. The terms of the contract were neither unreasonable nor against public policy, and the contract was therefore legal and binding on the parties thereto. Central R. Co. v. Avant, 80 Ga. 195. 2. The freight receipt for the car in which the cabbages were shipped, signed by stencil with the name of the agent of the defendant company, was excluded from evidence, because there was no proof that the receipt had been signed by the agent, nor that it was binding upon the company as an admission that the shipment was received as “in good order.” There was no proof that the agent actually signed the receipt or adopted the stencil signature, or that it was his custom to sign his name to receipts of this kind by stamp. There was no proof of the execution of the receipt, and it was properly excluded from evidence. 3. The special contract between the consignor and the initial carrier limited a recovery for loss or damage to the carrier in possession of the goods at the time of injury, or whose conduct occasioned the loss or damage. This is true with respect to both counts in the petition. Central R. Co. v. Avant, supra; Kavanaugh v. Southern Ry. Co., 120 Ga. 62. When a connecting carrier who has completed the transportation and delivered the goods to the consignee in a damaged condition is sued for the loss in value, upon proof that the initial carrier received the shipment in good order the jury have the right to infer that they continued in that condition down to the time of their delivery to the carrier making the delivery to the consignee, and that the injury or loss occurred while in his possession. W. & A. R. Co. v. Exposition Mills, 81 Ga. 523; Forrester v. Georgia R. Co., 92 Ga. 699. If nothing more had appeared than that the consignor delivered the cabbages to the initial road in good order, the plaintiff would have shifted the burden on the de [514] fendant company of showing that it was not responsible for the damaged condition of the cabbage when delivered to the consignee. The only evidence offered by the plaintiff to show when the car which contained the cabbages was received by the defendant company from its connecting carrier was a letter from the agent of the defendant to plaintiff’s attorneys. In that letter the agent wrote : “The car was delivered us at 9 a. m. and was forwarded south on the first train thereafter, arriving at Atlanta that afternoon.” The car was turned over to the plaintiff, without delay, upon its arrival, and the plaintiff commenced early the next morning to unload it. Marietta is twenty miles distant from' Atlanta, and the average freight train makes about twenty miles per hour. So it affirmatively appears that -the car was in the possession of the defendant company only a part of a day, and was forwarded to destination by the first train leaving Marietta after the car was turned over to that company by its connecting line. As there was no delajr in transportation or delivery to the consignee on the part of the defendant, the rot in the cabbages was attributable either to the delay of the carriers which handled the shipment before it was delivered to the defendant, or to inherent natural causes. The plaintiff’s proof indicates that the loss was occasioned by the failure of the connecting railroads to transport, the car to Marietta in time for it to leave on an earlier train upon the defendant’s line; for there was evidence that the cabbages were shipped on September 21, and ought to have arrived in Atlanta within three or four days. As the damage was not caused by the defendant’s negligence, the grant of a nonsuit was proper. Judgment affirmed. All the Justices concur.