Central of Georgia Railway Co. v. Butler Marble & Granite Co. , 1910 Ga. App. LEXIS 1 ( 1910 )

Russell, J.

(After stating the foregoing facts.)

1. We find no error in the judgment refusing a new trial, though the judgment must be amended. Under the rulings in Western & Atlantic R. Co. v. Brown, 102 Ga. 13 (29 S. E. 130), and in Central R. Co. v. Hall, 124 Ga. 322 (52 S. E. 679, 4 L. R. A. (N. S.) 898, 110 Am. St. R. 170), the interest is not recoverable eo nomine. While the jury may consider the length of time the damages have been withheld, and all other circumstances connected with the transaction, and may, in their discretion, increase the amount of damages by adding to the value of the property destroyed a sum equal to the interest on such value, the entire sum found must bo returned as damages, and not exceed the amount sued for. The judge might have -sent the jury back to consider whether they desired to include as damages the amount mentioned by them as interest in their finding, if the sum total would not have exceeded the amount for which the plaintiff sued. But the mere fact that the jury found interest eo nomine is not sufficient ground for reversing the judgment. The forfeiture of the interest which the jury thought the jolaintiff was entitled to recover is a sufficient .penalty, and we therefore direct that the judgment be amended by striking therefrom the $19 specified as interest.

2. In the evidence it is not disputed that the four several shipments of monument marble delivered by the plaintiff to the defendant were destroyed by fire while in the custody of the defendant. Whether the plaintiff complied with the custom which requires shippers, if they desire a car to be forwarded on a certain day, to deliver the shipment to the defendant before 9 o’clock, and whether the defendant was unable to forward the shipment, because it had no freight-train on Saturday after-the time it received the shipment, and no freight-trains except for live stock and perishables on Sunday, is wholly immaterial in this case, because the railroad company accepted the shipment and gave its bill of lading for it, and the marble was in proper condition to be transported. It might have declined to accept the shipment in violation of custom at the particular time, but- there is no dispute that the employees' of the defendant carried the car containing the marble from the Seaboard Air-Line Railway’s transfer track to its own side-track near the Americus compress. It waived custom and accepted the shipment for transportation. The real issue in the case, therefore, turns upon the question whether the defendant carrier is entitled to have its liability diminished in accordance with the terms of .its continuing tender, and in accordance with the valuation of the shipment mentioned in the bill of lading. If so, the plaintiff was only entitled to recover $13, instead of the amount of the verdict actually rendered.

3. It is insisted by the learned counsel for the plaintiff in error that the bills of lading were prepared by an agent of the marble company, and that by reason of the low valuation given the marble shipped, and the fact that it was billed “released,” the shipper obtained a lower rate than it would otherwise have been entitled to; also that the rate specified was one prescribed in the classification and rates of freight fixed by the railroad commission; also, it being a violation of law and in contravention of the “Hepburn act,” regulating interestate commerce, for a carrier to charge or a shipper to obtain a higher or lower rate than that fixed, and the shipments in question having been made by classification fixed by law, that the plaintiff’s right to recover was limited to the classification selected. The controlling question is whether there was a bona fide valuation, or whether the assumed value was arbitrarily reached. We consider this as the only question to be viewed, because the evidence fails to show that the contents of the ear were unknown to the carrier; for the agent of the company testifies that he Imew the shipments going south from the marble company were monumental stuff. Each bill of lading specified the shipment as being marble, either boxed or crated. The value was fixed at 20 cents per cubic foot, and the number of cubic feet in each shipment was specified.

In Central Ry. Co. v. Hall, supra, it was held that “a railway company, in its capacity as a common carrier, may, as a basis for fixing its charges and limiting the amount of its corresponding liability, lawfully make with a shipper a contract of affreightment embracing an actual and bona fide agreement as to. the value of the property to be transported; and in such case, when loss, damage, or destruction occurs, the shipper will be bound by the agreed valuation. But a mere general limitation as to value, expressed in a bill of lading, and amounting to no more than an arbitrary preadjustment of the measure of damages, will not, though the shipper assent in writing to the terms of the document, serve to exempt a negligent carrier from- liability for the true value.” It is a proposition undisputed in this State, so far as we are aware, that a carrier can not, even by special contract, exempt himself from liability for the loss of goods entrusted to him, where a loss arises from his negligence or that of his servants.

4. And even where there is an attempt to .limit liability, m return for a lower rate of freight, and there is an issue of fact as to whether there was an actual bona fide valuation or a mere arbitrary effort to limit liability, the question is one for the jury. The case at liar is quite similar as to its facts to that of Louisville & Nashville R. Co. v. Venable, 132 Ga. 501 (64 S. E. 466), in which some of the bills of lading, as in the present case, expressed a value of 20 cents per cubic foot, and others erroneously 40 cents per cubic foot. In delivering the opinion of the court- Justice Atkinson said: “Especially did the court not err fin not holding tha.t the plaintiffs were.limited in recovery of damages to the value of the stone as set out in the bills of lading received by the plaintiffs from the defendants/ ”

5. Under the ruling in Georgia Southern & Fla. Ry. Co. v. Johnson, 121 Ga., 231 (48 S. E. 807), where goods are shipped “released,” the burden is upon the carrier to show that the loss was within the exemption, and not occasioned by his own negligence. The term “released,” as a legal phrase, is construed to mean no more than that the carrier is relieved from losses not occasioned by his negligence. In the case just cited the judgment was reversed because it appeared that there ivas a bona fide valuation, and that the contents of the shipment (or at least the value of the contents) were entirely unknown to the carrier, as Avell as that the valuation was fixed solely by the shipper; but in passing upon the question it was held that AAdrere the carrier arbitrarily fixes the atiIuc of a consignment, or where, by the terms of the bill of lading, there ?.s an arbitrary fixing of value before the goods are inspected, without any regard to their real worth, the assumed valuation in either event must be treated as a mere attempt in advance to limit liability. Applying these rules to the present Case, we find that while it is true that the agent of the shipper inserted in the bills of lading the words: “Eel. val. at' 20 cents cu. ft.,” this valuation bore no relation whatever to the true value of the shipment, and that the jury were authorized to find not only tliis to be true, but that the agents of the defendant company, from having made very numerous shipments of the same kind for the plaintiff prior to that time, were fully aware of the disparity between the valuation mentioned in the bill of lading and the true worth of the shipment. It was not a case of a segregated instance in which the plaintiff for the first time tendered to the defendant a shipment of marble at a valuation of 20 cents per cubic foot. The evidence was ample to authorize the jury to find that the value of the consignment was merely arbitrarily fixed; in other words, that there was no bona fide effort, either on the part of the shipper or of the carrier, to value the shipment. This court takes judicial cognizance of the classification and rates of the railroad commission (Central Ry. Co. v. Cook, 4 Ga. App. 701 (62 S. E. 464)), blit the question in this case is not affected by the fact that there is a rate prescribed by the commission for monuments and gravestones with a valuation limited to 20 cents per cubic foot. This rule might apply to an honest agreement as to the valuation of marble (if there be any worth 20 cents per cubic foot), but in this case there is no evidence whatever that the parties .conferred about the value of this marble or considered it at all. The jury were obliged to find that the valuation was arbitrary.

Under the ruling in G. S. & F. Ry. Co. v. Johnson, supra, and the unbroken line of decisions holding that the value of the shipment can not be arbitrarily fixed as a mere prearrangement against liability, it must be held that the rate announced in the classification of the railroad commission had no application to such a state of facts as that presented in this case. It appears here that the freight on marble from Marietta to Amencias is 26 cents per cubic foot, and presumably it is much more on marble from Vermont. It is possible that the classification of the railroad commission might apply as a true measure of value to shipments from some points where the initial freight rate is' less than 20 cents per cubic foot, but it certainly could not have been intended to apply, and can not apply as a fair valuation, to a shipment where even the cost of transportation is greater than the agreed valuation.

Nor is the result affected by the fact that the rate given to the shipper by the carrier may have been in violation of the rates fixed by the interstate-commerce commission and required to be published. This might subject either or both of the parties to a criminal prosecution, or, as pointed out in the cáse of Georgia Railroad v. Creety, 5 Ga. App. 427 (63 S. E. 528), would allow the carrier to sue for and to cover the charges fixed by the interstate-commerce commission in an action brought for that purpose. The amount of freight charged for the carriage of a shipment, however, has nothing to do with the right of a plaintiff to recover for the loss or destruction of the property he has entrusted to a carrier for shipment, except in so far as the charge for freight may be a circumstance showing that there was a bona fide valuation of the shipment.

6. It is unnecessary for us to determine whether the trial judge ruled correctly upon the demurrer which sought to strike from the petition that portion thereof which related to a recovery of the penalty provided by the act of 1906; because the judge charged the jury that under the evidence submitted, the plaintiff was not entitled to recover the penalty; and the jury did not find the defendant subject to the penalty. In. view of the judge’s instructions upon that subject, the defendant’s cause could not have been prejudiced. So far as its ultimate effect upon the result of a trial is concerned, an objectionable feature in the pleadings can be as effectually removed by the charge of the judge as by sustaining a demurrer thereto. The error then becomes harmless. The court’s failure to sustain a demurrer, even though the demurrer be well founded in law, is not an error which affords just ground for complaint, if the charge of the judge to the jury effectually accomplishes the end sought to be attained by the demurrer, and precludes the plaintiff from the relief to which the defendant objected, or withholds from the plaintiff a defense to which he is not entitled by law.

7. The instructions of the court upon the effect of an arbitrary valuation of property received by a carrier for transportation, which are excepted to, so far from being objectionable, are clear, definite, and pertinent, and present not only the view that an arbitrary valuation, if the jury found it to be such, would not relieve the defendant from its liability, if the jury thought it otherwise liable for the destruction of the property, but present with equal fairness the view that if there was a bona fide valuation .of the shipment, the liability of the carrier would be limited to that. There was no evidence in this case that the agent of the shipper overreached or misled the employees of the carrier, or that there was any concealment of the nature of the shipment.

8. Strictly considered, it was perhaps erroneous to have allowed one of the witnesses for the plaintiff to give to the 'jury his conclusion that “no fault or negligence whatever, on the part of the Butler Marble & Granite Company, occasioned the damage to them,” but the error is not such as to have called for the granting of a new trial. There is no evidence whatever, to dispute the testimony of the witness, although it may be a conclusion. All of the testimony, every fact in the case, confirms his statement. There is certainly no contention that the plaintiff had anything to do with placing the car at the side-track near the compress, and no dispute as. to the fact that it was burned because of its proximity to the compress.

The judge did not err in overruling the objection to certain testimony of C. A. Snyder, a witness for the plaintiff; for the reason that the objection was made (as appears from the record) to that testimony as a whole, and, while a portion of it might have been subject to the objection urged, many of the statements included in it were legal and competent. No effort was made to separate the objectionable portion from the legal testimony; and;, under the well-settled rule, the duty of making this separation devolved upon the objector. After a careful review of the record, we are satisfied that, the controlling issues in the case were properly submitted to the jury, that the verdict is sustained by ample evidence, and that the minor errors to which we haye referred had no effect upon the result.

With the direction that the judge of the city court amend the verdict and the judgment so as to exclude the amount returned as interest, the judgment is affirmed.

Judgment affirmed, with direction.'