Atlantic Coast Line Railroad v. Stovall-Pace Co.

BLOonwoirai, J. 1. The motion to dismiss the bill of exceptions is overruled. 2. Stovall-Paco Company brought suit against the Atlantic Coast Line Railroad Company, the last of certain connecting carriers, for the loss of a certain box of goods shipped from East Dedham, Mass., to Augusta, Ga., alleging that “the defendant received the goods described in paragraph 3 of plaintiff’s complaint, from its connecting carrier, the said goods being in good order, but that said defendant has never delivered said goods to petitioner.” A demurrer to the petition alleged in part that the petition should be dismissed “because under the interstate-commerce act the original carrier is alone responsible.” The plaintiff did not expressly declare upon the State or Federal statute, but merely pleaded the facts relied on to show liability against the last connecting carrier. The allegations were sufficient to show that the loss was caused by negligence of the defendant, “The wrong here complained of was committed by the defendant, not by the initial company, and the plaintiff is not excluded from suing the wrongdoer.” The demurrer was properly overruled. Southern Railway Co. v. Morris, 147 Ga. 729 (95 S. E. 284); Western & Atlantic Railroad Co. v. White Provision Co., 142 Ga. 246 (2) (82 S. E. 644); Cincinnati &c. Ry. Co. v. Quincey, 19 Ga. App. 167 (91 S. E. 220); Atlantic Coast Line R. Co. v. Thomasville Live Stock Co., 13 Ga. App. 102 (78 S. E. 1019). 3. The amendment to the motion for new trial, filed on December 21, 1918, cannot be considered by this court, for two reasons: (a) “A ground of a motion for new trial based upon the admission of evidence should state what objection was made thereto when it was offered at the trial, and should affirmatively show that the objection was then urged; otherwise no question is raised for determination.” Hixon v. Myers, 144 Ga. 408 (2) (87 S. E. 475); Whiddon v. Salter, 144 Ga. 77 (2) (86 S. E. 243). (b) “Grounds of a [250] motion for a new trial which arc incompléte, and cannot be uifderstood without resorting to an examination of the brief of evidence, fail to present any question for decision. Head v. State, 144 Ga. 383 (87 S. E. 373); Sims v. Sims, 131 Ga. 363 (63 S. E. 193).” Smiley v. Smiley, 144 Ga. 546 (87 S. E. 668); Daniel v. Schwarzweiss, 144 Ga. 81 (86 S. E. 339). 4. Plaintiff urges that a new trial should be granted on the general grounds, because no value of the lost box of goods was shown. An examination of the evidence reveals the fact that this contention is true; and for this reason the verdict is without evidence to support it, and the judgment must be Reversed. Broyles, G. J., and Dulce, J., concur.