Yesbik v. Macon, Dublin & Savannah Railroad , 11 Ga. App. 298 ( 1912 )

Pottle, J.

(After stating the foregoing facts.)

There being no allegation that the defendant receipted for the car of bananas as in good order, the petition will be construed as an effort to recover upon the implied obligation of the carrier to deliver safely and promptly, and not upon the statutory liability set forth in § 2752 of the Civil Code (1910). It appearing that the shipment was delivered to the defendant as a connecting carrier in due course of transportation, and nothing to the contrary appearing, the presumption is that the bananas were received as in good order. The onus is upon the defendant to show that they were not so received. Hartwell Ry. Co. v. Kidd, 10 Ga. App. 771 (74 S. E. 310) ; Forrester v. Ga. R. Co., 92 Ga. 699 (19 S. E. 811). Until this presumption is rebutted, the defendant stands as though it had actually received the goods as in good order, and its liability is the same as that fixed by the section of the code. It can defend by showing that when received by it, the goods were in the same condition as when tendered to the plaintiff at Dublin; but if received by it without exception, only those defenses are open which could be made by the initial carrier, such as that the bananas were damaged when delivered do the first carrier in New Orleans, or that, after shipment, they became damaged without fault on the part of any of the carriers. The plaintiff made a prima facie case, showing the receipt of the bananas by the defendant as a common carrier, and the damage to the fruit. The evidence on the subject of delay is indefinite, and probably not sufficient to show an unreasonable delay in transportation. But this becomes immaterial in view of the plaintiff’s 'testimony that the closing of the vents, and not the delay, caused the damage. A carrier is bound to follow shipping directions given by the apparent owner of the goods shipped, and will not be liable for damages consequent upon obedience to such instructions. Hutchinson, Carriers (3d ed.), § 69. But there is no evidence that the shipper directed the initial carrier to close the vents. There was no express contract, but a bill of lading in the nature of a receipt for the goods, signed by the carrier alone. The mere notation on the receipt after the description of the goods, — “all vents closed,” — is not sufficient, standing alone, to prove that the carrier had been directed by the shipper to keep the car in this condition. There was no proof of the shipper’s assent, or even knowledge; and, for aught that appears, the carrier closed the vents on the ear in the exercise of its own judgment. The defendant having been named in the bill of lading as one of the carriers over whose line the goods were to be transported, the decisions in East Tenn. Ry. Co. v. Johnson, 85 Ga. 497 (11 S. E. 809), and Almand v. Georgia R. Co., 95 Ga. 775 (32 S. E. 674), have no application. Besides, in neither of those cases was the suit for damage to goods in transit. '

Judgment reversed.