Southern Railway Co. v. American Whip Co.

Lumpkin, J. (After stating the foregoing facts.) 1. It was for the jury to determine whether they would give credit to the evidence on behalf of the plaintiffs, or to that on behalf of the defendant. Under the evidence for the plaintiffs the [712] defendant was guilty of a conversion. Whether or not it was bound by the agreement of its agent at Suwanee to forward the baggage to the plaintiff Webb, it could not lawfully carry the trunk to Atlanta without his consent, and there deliver it to a terminal or transfer company, with a right in the latter to charge storage upon it. Under the evidence for the plaintiffs, they could not be required to pay any storage charges for the keeping of the trunk in Atlanta; and a wrongful refusal to deliver it except upon payment of such charges amounted to a conversion, 'and authorized the bringing of an action of trover, or its statutory equivalent. Liptrot v. Holmes, 1 Ga. 381; Phillips v. Brigham, Kelly & Co., 26 Ga. 617 (71 Am. D. 227); Georgia Railroad Co. v. Cole, 68 Ga. 623; Richmond & Danville R. Co. v. Benson & Co., 86 Ga. 203 (2a), 207 (12 S. E. 357, 22 Am. St. R. 446); Rushin v. Tharpe, 88 Ga. 779, 782 (15 S. E. 830); Savannah, Florida & Western Ry. Co. v. Talbot, 123 Ga. 378 (51 S. E. 401, 3 Ann. Cas. 1092); Southern Express Co. v. Sinclair, 130 Ga. 372, 373 (60 S. E. 849). Counsel for the plaintiff in error cited Wilenshy v. Central of Georgia Ry. Co., 136 Ga. 889 (72 S. E. 418, 25 Ann. Cas. 271). But that decision is not applicable to the case now before us. It was there held that a shipper, who was both consignor and consignee, could not maintain against a carrier an action ex contractu for the value of the goods consigned to the carrier for shipment and not delivered, when the carrier tendered the goods at destination in a damaged condition, but refused to deliver them unless the shipper paid the usual freight charges, notwithstanding the damages to the goods amounted to more than the freight charges. Here the action does not sound in contract for the value of the goods, but in trover for their conversion. The defendant had no right to carry the property to Atlanta, or to deliver it to the terminal company there, or to 'authorize that company to store it and subject it to charges. It had no right, when called on by its passenger, to refuse to deliver his baggage to him without the payment of such illegal charges. It did not appear that the rules of the railroad company called joint tariff rules were binding on the plaintiffs, or, if so, that they furnished any valid defense, under the facts of the case. Nor does the rule of the railroad commission, which authorizes storage charges after 24 hours, confer the right upon a railroad company to [713] carry a passenger’s baggage, without his consent, to the wrong place, some thirty miles distant from the point to which it was checked, and to deliver it to another company to hold and charge storage upon it. 2. It was contended that the. action was brought jointly by the American "Whip Company and Webb, and that the evidence did not show a joint ownership of the property. The action was brought by the two plaintiffs claiming title to the property, and alleging a refusal on the part of the defendant to deliver it to them. The answer did not controvert their joint ownership, but practically admitted it, setting up as the reason for refusing to make delivery “to the plaintiffs” that the Atlanta Terminal Company had a storage charge against the property, which had tó be paid before delivery. There was no plea of misjoinder of parties, and no motion for a nonsuit on the ground that a joint title was not shown. Under these circumstances, after a verdict in favor of the plaintiffs, the making of a motion for a new trial on the general ground that the verdict was contrary to law and evidence, and the overruling of it by the trial judge, this court will not reverse the judgment on the ground that the evidence did not show a joint title. The remark of Blandford, J., in Wrightsville & Tennille R. Co. v. Holmes, 85 Ca. 668 (11 S. E. 658), to the effect that where the legal title to land was in one person, and the equitable title in another, an action of trespass to the land, brought jointly in the names of both, would seem not to be a basis for recovery, there being no joint title, does not constitute a distinct ruling that a verdict would be set aside on that ground, on a general assignment that the verdict was contrary to law and evidence, if no point as to parties had been previously made. Western & Atlantic R. Co. v. Tate, 129 Ga. 528 (59 S. E. 266). But if such had been the ruling, it would not apply to the facts of this case. Judgment affirmed. All the Justices concur.