Central Railroad v. Logan & Co. , 77 Ga. 804 ( 1887 )

Blanbford, Justice.

Logan & Co. brought their action against the Central' Railroad, and by their declaration alleged that they were damaged by the defendant, in that it refused to receive and transport forty-seven car-loads of salt, which plaintiffs had shipped from Brunswick, Georgia, to Macon, Georgia, upon the cars belonging to the E. T., Va. & Ga. Railroad, consigned to persons residing on the Southwestern Railroad, the said E. T., Va. & Ga. Railroad connecting with the Central Railroad at Macon, and having the same gauge, but the salt was required to be unloaded and transported in drays to the warehouse of the Central Railroad in Macon at great expense to plaintiffs; and that the Central Railroad, was operating the Southwestern Railroad; and by an amendment, it was further averred that the Central Railroad had leased the Southwestern Railroad. There was a count that, by reason of defendant’s having failed to receive salt of plaintiffs, their business was broken up and that thereby they sustained great damage. There was a general demurrer to the sufficiency of the declaration. The court below sustained the demurrer and dismissed the action. On writ of error to this court at the February term, 1885, this judgment sustaining the demurrer and dismissing plaintiffs’ action was reversed, this court holding the declaration sufficient. 74 Ga. 084.

1. One of the plaintiffs was permitted to testify, over objection of defendant’s counsel, that they had sustained loss in their business by being compelled to sell the salt which his.company had on hand, at greatly reduced prices, by reason of defendant’s having refused to receive the cars of the E. T., Va. & Ga. R. R., and requiring trans-shipment at Macon by drays to defendant’s warehouse. This is the first exception, and we will deal with it now. The act of 1874, as contained in sections 719(q) and 719(s) of the code, (the first section) pi’ovides that, if any railroad company shall fail to deliver to a connecting road goods shipped to any point over or beyond such connecting road, the road failing to deliver shall be guilty of a conversion of the goods so shipped, and the owner or consignee may recover the value of the same, with interest, and not less than ten nor more than twenty-five per cent, for expenses and damages. The last section provides that there shall be no discrimination by a railroad company in its rates or tariff of freights in favor of any line or route connected with it as against any other line or route, nor, when a part of its own line is sought to be run in connection with any other route, shall such company discriminate against such connecting line, or in favor of the balance of its own line, but shall have the same rates for all, and shall afford the usual and like customary facilities for interchange of freights to patrons of each and all routes or lines alike ; any refusal of the same shall give a like right of action as mentioned in section 719(q) of this code. Damages are presumed, under this last section 719(s) as in 719(q), up to ten per cent, of the value of the property which the railroad refuses to receive and transport when like facilities are afforded to other connecting roads, or to the patrons of other roads, or even of its own line, and beyond ten per cent, and within the limit of twenty-five per cent, all the elements of real or actual damages which are admissible in any action are admissible in this action. The jury are required, when the railroad company has violated this statute, to find at least ten per cent, upon the value of the goods shipped, and may find twenty-five per cent., and any testimony which shows loss or damage to the plaintiff by reason of the misconduct or fault of the defendant is admissible in evidence to the jury, which may influence their finding up to or within twenty-five per cent., and in this case, the jury did not exceed the limit of twenty five per cent., the value of the salt being shown to be from five to seven thousand dollars, the finding being nine hundred dollars.

2. When the plaintiffs closed the introduction of evidence in the case, defendant moved to dismiss the case, because it appeared that whatever damage had been done was by the Southwestern Railroad Company, and not by the Central Railroad; and that the Central Railroad was alone sued, there being no service on the Southwestern Railroad, the lessor to the Central Railroad, as required by law. This motion was overruled by the court, and this is excepted to and error is assigned on said exception. This exception and ground of error was ruled adversely to the plaintiff in error in the case of Central Railroad vs. Whitehead et al. 74 Ga. 441. It is alleged in the declaration, and was proved on the trial of the case, that the Central Railroad was operating the ’ Southwestern Railroad when the damage was done; this being so, there was no necessity to make the Southwestern Railroad Company a party to the suit. Whether the Central Railroad Company operated the Southwestern Railroad under a lease or otherwise, it was bound to comply with the law, and a failure on its part to discharge its legal duties rendered it liable to any one injured thereby.

3. The court charged the jury, and every point therein is excepted to by the plaintiff in error. The main ground relied on by plaintiff in error is, that there was error in the court’s charge that, if the railroad company had not complied with the law as prescribed in section 719(s) of the code, it was liable to the penalty prescribed in section 719(q). The plaintiff in error insisting that the right of action against a railroad company for refusing to receive goods and mulcting it in fixed damages for such failure, was not enacted until 28th September, 1883, after this suit was brought, and that no damages could be recovered but the actual damages incurred by the plaintiff for the transshipment of the salt which had been tendered. The decision complained of was, in effect, ruled in this case when it was formerly before this court at the February term, 1885. 74 Get. 681; But if it was not, we think that, construing sections 719(q) and 719(s) together, the provision in 719(s) that any refusal of the same, that is, like facilities afforded to one road connected with it, shall give a like right of action as that mentioned in 719(q). The right of action given in 719(q) is to recover not less than ten per cent, nor more than twenty-five per cent, for expenses and damages. These two sections give a right of action for the non-delivery of goods to a connecting road by a road entrusted with their carriage, which goods are consigned to point or points beyond its limits or terminus, and a like right of action for refusal of a connecting road to receive the goods and in discriminating in favor of one line and against another. These sections give the right of action to the plaintiffs in this case. So we hold that there is no error in the charge as mentioned in this case by the plaintiff in error. .......(

4. The next assignment of error insisted on by counsel for plaintiff in error is, that the court erred in instructing the jury that, if the plaintiffs tendered to defendant one or more car-loads of salt and it was refused, and when the 47 cars loaded with salt arrived, the agent of the railroad company bringing the salt to Macon inquired of the agent of the Central whether a certain order issued by the officers and agents of the Central Railroad Company on the 12th October, 1882, to the effect that, after that date, no shipment of salt or other merchandise from Brunswick, in competition with Savannah, will be received for local stations in its line, or passing over the Southwestern Railroad division or points beyond, unless charges are prepaid and shipments are delivered at the warehouse by drays as local business, when local tariff rates from Macon will be assessed on same, was still of force and operative, and he was informed that said order was still of force, then there was no necessity for further tender of cars to defendant. We think there was no error in this charge. The publication of the order by defendant, and the notification to the delivering company that the order was still of force, was a waiver of tender by defendant, and a party acting under such order will be equally protected as if he had made actual tender.

These are the main grounds in the assignments of error, and we need only say that there does not appear to be any error in the other assignments.

Judgment affirmed.