Atlantic Coast-Line Railroad v. Henderson Elevator Co. , 18 Ga. App. 279 ( 1916 )

Wade, C. J.

1. “If the consignee rejects the goods, the carrier’s liability as such ceases, and he becomes liable as warehouseman. As such warehouseman he is chargeable with the duty of notifying the consignor of the consignee’s refusal to accept the goods, and with the further duty of holding the same subject to the order of the consignor.” Alabama Great So. R. Co. v. McKenzie, 139 Ga. 410, 411, 412 (77 S. E. 647, 45 L. R. A. (N. S.) 18). See also American Sugar Refining Co. v. McGhee, 96 Ga. 27 (21 S. E. 383); Nashville &c. Ry. v. Dreyfuss-Weil Co., 150 Ry. 333 (150 S. W. 321).

2. “An exception to a refusal to allow a witness to answer a specified question presents no assignment of error with which this court can deal, when it does not appear what answer was expected. This is essential in order that the relevancy and materiality of the question may be passed upon.” Scott v. Maddox, 113 Ga. 795 (4), 799 (39 S. E. 500, 84 Am. St. R. 263). If it does not appear what the witness would have answered, it can not be determined whether the exclusion of the answer was harmful. Eor this reason the first ground of the amendment to the motion for a new trial can not be considered.

3. An assignment of error upon the ground that the verdict was contrary to a specified part of the charge of the court is in effect a complaint that the verdict was contrary to law; and such an exception “does not present for decision any legal question.”. Napier v. Burkett, 113 Ga. 607 (38 S. E. 941); Wight v. Schmidt, 111 Ga. 858 (36 S. E. 937); Roberts v. Keeler, 111 Ga. 181, 186 (36 S. E. 617).

4. There is no merit in the 3rd ground of the amendment to the motion for a new trial, as there was- evidence from which the jury were authorized to infer a refusal on the part of the Chatham Mills Company (the order-notify-consignee) to pay the draft, including the admission to that effect in a paragraph of the plea, which, though afterwards stricken by the defendant, was formally tendered and admitted in evidence in behalf of the plaintiff. In the light of the entire charge and the testimony, this . excerpt contains no reversible error.

5. The court did not err in charging the jury that “railroad companies as common carriers can not excuse themselves for the loss of property, except it be by the act of God or public enemy.” Conceding that the relation of carrier had ceased and that of a warehouseman had commenced, the court, in the charge as a whole, clearly differentiated the responsibility of a common carrier from that of a warehouseman.

6. The court erred in charging the jury that if they should find that the defendant was liable, the verdict would be, “We, the jury, find for the plaintiff in the sum of $392.90, with interest at the rate of seven per cent, per annum from February 9, 1911.” The demand was unliquidated, since it was not fixed by agreement between the parties or by operation of law, and the value of the lost commodity was dependent upon the market price. The demand being unliquidated, the allowance of interest was within the discretion of the jury, and, while they may have increased the damages by an allowance of interest, the amount so allowed should have been included in one gross sum as damages, and not separately specified by the verdict. Tifton &c. Railway Co. v. Butler, 4 Ga. App. 191 (60 S. E. 1087); Mayor &c. of Milledgeville v. Stembridge, 139 Ga. 692 (3), 693 (78 S. E. 35); Central Ry. Co. v. Hall, 124 Ga. 323 (12), 338 (52 S. E. 679, 4 L. R. A. (N. S.) 898, 110 Am. St. R. 170, 4 Ann. Cas. 128). See also Council v. Hixon, 11 Ga. App. 818 (76 S. E. 603).

Decided June 26, 1916.

Action for damages; from city court of Savannah — Judge Davis Freeman. April 31, 1915.

P. W. Meldrim, Shelby MyricJc, for plaintiff in error. Osborne, Lawrence & Abrahams, contra.

(a) The further objection to this excerpt from the charge, urged in the brief of counsel for the plaintiff in error, that the verdict was misdirected as to the principal amount, because the invoice price shown was the price at the point of shipment, and the court directed a verdict for this amount, plus interest, though the true measure of damages should have been the value of the goods at destination, less freight, can not be considered, for the only ground of objection in the motion for a new trial as to this part of the charge is that relating to the allowance of interest.

7. Except as indicated in the foregoing ruling as to the allowance of interest, the court did not err in overruling the motion for a new trial, and the judgment is affirmed, with direction that the plaintiff write off the interest from the verdict and judgment.

Judgment affirmed, with direction.