Southern Ry. Co. v. Atlanta Nat. Bank

McCORMICK, Circuit Judge, after stating the case as above, delivered the opinion of the court. It appears from the report of the auditor and the opinions of the trial judge that the defendant did not insist on its demurrer to the petition, but did insist that there could be no recovery against it under the plaintiff’s declaration. The defendant joined issue on the merits by plea and answer, in which it denied its liability as a carrier on account of the bills of lading, denied that it had received the cotton as a common carrier, and denied its liability either as a common carrier or in any other capacity. The report of tiie auditor states, “There are no controverted facts in the case.” And in the exceptions to that report filed by the defendant it is admitted that this statement of the auditor is true, but it is insisted that, although the facts are not controverted, certain conclusions reached by the auditor from 1hese facts are erroneous, and not authorized by them. Also, in its assignment of errors, in the second paragraph, it is recited, “The evidence of the case not being in conflict;” and also in paragraph 3 there is the recitation, “as the evidence was not in conflict.” it is manifest that there was no ruling by the auditor, or by the court in reviewing the auditor’s report, in relation to the introduction or rejection of evidence to which the railway company excepted. As the case was tried without a jury, there could be no exception taken in the circuit court, nor can there be in this court, to any propositions of law announced by the judge as having been held by him in his consideration of the evidence and reaching his conclusions or special findings of fact therefrom. Jennison v. Leonard, 21 Wall. 302, 22 L. Ed. 539; Norris v. Jackson, 9 Wall. 125, 19 L. Ed. 608; City of Key West v. Baer, 13 C. C. A. 572, 66 Fed. 440, 30 U. S. App. 140. There are two questions of law in this case: (1) Are the pleadings of the plaintiff sufficient to support the judgment? (2) Do the facts found by the trial judge support the judgment ? As to' the first question, the auditor says in his report: “In Georgia, where all formal distinctions between actions have been abolished by statute, and where the plaintiff is simply required to set forth by petition and in paragraph his cause of action, the question whether the declaration is one in assumpsit on the contract or is one on the case for wrongful conversion of cotton is not of practical importance.” And the learned trial judge, in reviewing the report of the auditor, referring to this subject, says: “The system of pleading in Georgia now is very liberal, and, this being an action at law, that liberality will be fully recognized in this court. I think [868] that, talcing tljis declaration -altogether, the plaintiff has plainly and distinctly set forth his cause of action, sufficiently so, at least, at the present stage of the case, and after a finding thereon by the auditor,” A careful examination of the provisions of the Georgia Code on the subject “Of Actions/’ tit. 4, §§ 4729, 4960, 4961, and 4995, with the related sections, which we do not deem it necessary tó cite, has satisfied us that the views expressed by the auditor and by the eminent judge of the circuit court are fully sustained by the terms of the Geo'rgia statutes and the decisions of the supreme court of that state. We consider, therefore, that, the plaintiff having plainly and distinctly set forth its cause of action in separate successively numbered paragraphs as authorized and required by the Georgia Code, the petition is sufficient to support the judgment. Are the facts found sufficient to support the judgment? We are embarrassed by the state of the record in our effort to hold in view or set out with clearness the facts found by the trial judge. On the same day that he approved the writ of error bond (May 25, 1901) he caused to be entered in the case an order “that the opinions rendered by the court in the above-stated cause be, and the same are hereby, made a part" of the record in said cause.” And on the bill of exceptions that day presented by the railway company, he indorsed : “I do certify that the foregoing bill of exceptions is true, and, together with the record and opinion of the court, contains all the evidence, rulings, and decisions of the court material to a clear understanding of the errors complained of; and the clerk of said court is hereby ordered to file the same as a part of the record of said cause.” It cannot be that the many pages of record matter to which this certificate refers are to be received and considered by us as the special findings of fact, and it may well be doubted if, under the conditions in which the case was tried in the circuit court, it is our duty to thresh through all this matter and winnow out the special findings. which it may contain. If so, it is very difficult to distinguish between a review of such a judgment on writ of error and a review on appeal of a decree passed in equity. Waiving any question on, this subject, it sufficiently appears that the trial judge did find: That the plaintiff bank had taken a note from Hamilton, Gibson & Leake for $30,000, due on demand; had advanced them money from time to time, and paid their checks, which were secured from time to time by bills of lading covering shipments of cotton, shipped to Atlanta and shipped out of Atlanta. That the plaintiff bank was the bona fide holder, for value, of the bills of lading (attached to the plaintiff’s petition) at the time the suit was filed in the city court by it. That these bills of lading were received by it within a few days after they were issued, and, whether in its possession at the time the cotton was delivered to the Bell Street Compress or not, they had gotten into its possession before the cotton finally left the Bell Street Compress. That all of these bills of lading recited in the usual-, form the receipt of cotton -from the shippers, and provided that the cotton was to be shipped to Norfolk, Va., and delivered tp “order notify” Hamilton, Gibson & Leake, via-'Beil Street .Compress; Atlanta, Ga. That the Bell Street Com [869] press, at the time this cotton reached it, was owned, controlled, and operated by the Southern Railway Company, not as ,a separate corporation, but simply as its property; the railway company .re-?' ceiving the net profits arising from the business. That all of the cotton covered by the bills of lading was brought to Atlanta by other carriers, and all the cars taking the cotton in controversy were delivered at Atlanta to the Southern Railway Company, and receipted for by it, and hauled or tracked by it to the Bell Street Compress, and there delivered to the agents or servants of the Southern Railway Company then in charge of the custody and operation of the compress, accompanied by manifests of the freight waybills, substantial copies of the waybills, which, in turn, were substantial copies of the bills of lading, in each of which manifests the cotton was described, its destination, Norfolk, Va., was given, and the consignee, “order notify” Hamilton, Gibson & Leake, was set out. The charges on the cotton were not set out in these manifests. That when these cars reached the compress the agents and servants of the railway in charge of the compress opened the cars, and placed the cotton in a certain space or compartment within the compress set apart to Hamilton, Gibson & Leake, the purpose of which was for classification and substitution by Hamilton, Gibson & Leake, who would then notify the persons in charge of the compress that they wished a certain number of bales of cotton compressed, which was to be sent to a certain point designated in the notification; and in this way the destination of the cotton was changed between the time it reached the compress and the time it was taken out of the compartment. On the question of handling cotton at the compress two rules adopted by the Southern Railway & Steamship Association, which was composed of the railroads centering in Atlanta, are as follows : “Rule 3. Through shipments of cotton covered by through bills of lading and waybills may be stopped in transit for compression or for compression and substitution, and afterwards reshipped on the basis of a through rate from original point of shipment to final destination, provided the cotton is not held at the compress point for more than sixty days. “Rule 4. The destination of such cotton may be changed after reaching the compress point upon surrender of the original bills of lading, and new bills of lading may be issued to correspond to changed destination; the through rate from initial point of shipment to final destination at the time of shipment to be strictly maintained.” The cotton, after being compressed, was by the agents of the defendant railway in charge of the compress delivered by loading sheets to Hamilton, Gibson & Leake, and again shipped; but where, to does not clearly appear in the evidence, but the fair inference from the evidence is that the destination of said cotton was by Hamilton,, Gibson & Leake changed at the compress. This delivery of the cotton to Hamilton, Gibson & Leake by the agents of the defendant in charge of the compress was without the knowledge of the plaintiff, and without requiring the production of the outstanding bills of lading covering the cotton. The value of the cotton thus delivered to Hamilton, Gibson & Leake is more than the amount of the plaintiff’s debt. The trial judge concludes his findings of fact thus: [870] “The material facts which the court finds in this ease, and which it considers controlling, are that all of the cotton in question was shipped, as shown by the bills of lading, via Bell Street Compress, Atlanta, and that the manifests which accompanied the cotton in question into the compress Showed that it was shipped to ‘order notify,’ which by the custom among railroads indicated to any one familiar with such matters that the bills of lading were outstanding in the hands of others than the shippers or consignee, and the further fact that the cotton was unquestionably allowed to go out of the compress without the production of the bills of lading.” We quote the, following language from a decision of the supreme court: “In ordering judgment for the plaintiff, certain propositions of law are announced by the judge as having been held by him. These are important only as they necessarily and of themselves affect the question whether the facts found are sufficient to support the judgment, and they are no more important than if they had not been thus announced. No specific exception * * ⅜. can be taken to them.” Jennison v. Leonard, supra. The great contention in this case appears to have been over the question whether the railway company, if liable at all, is liable as a carrier or as a warehouseman. It is clear to us from the findings of fact as we have digested them that this question is purely speculative, and its treatment shows a straining after definitions and an indulging in an interesting play on words rather than giving a just consideration to the things actually done and the obligations and liabilities thereby incurred. The Bell Street Compress is a place by Which or through which produce may be billed to be carried, and at or in which it may be deposited; but as a physical plant it has no capacity to appoint or have an agent, or to receive or deliver goods that have been carried or are to be carried to or from that place. It is not a person, natural or artificial, that did assume, or could assume, obligations, or incur liabilities. The natural persons in charge of its custody and operation were the agents and servants of the defendant railway,—an artificial person, that was sole owner of the compress plant and sole operator thereof, for its own profit, by and through agents and servants of its own appointing, and by and through whom it could and did assume obligations and incur liabilities; and it seems to us wholly immaterial to the disposition of this case to vex ourselves with the question as to whether the obligations it assumed and the liabilities it incurred were as a carrier or as a warehouseman. There is nothing in the defense that addresses itself, or can address itself, to such a distinction (as, for instance, a plea of limitation or of set-off). The property which the plaintiff owned as security for its debt having been wrongfully delivered to parties not entitled to receive it, and without the consent of the plaintiff, who alone had the right to receive it, the circuit court rightly adjudged that the plaintiff should recover from the defendant the amount of the damage the plaintiff had thereby sustained, which was the amount of its debt, principal and interest at the contract fate up to the date of the judgment, with lawful interest thereafter on the amount of the principal. The judgment of the circuit court is affirmed.