Graham Bros. Construction Co. v. Seaboard Coast Line Railroad , 150 Ga. App. 193 ( 1979 )

Underwood, Judge.

Graham Brothers Construction Company, Inc. ("shipper”) appeals from a judgment in favor of Seaboard Coast Line Railroad Company ("railroad”) for freight charges for shipment of a backhoe and from the grant of the railroad’s motion for summary judgment as to the shipper’s counterclaim for damages resulting from late delivery.

The facts are undisputed. On May 7, 1973, the railroad entered into a contract with the shipper to transport a Pocláin backhoe from Dublin, Georgia to Bainbridge, Georgia and issued a bill of lading. The backhoe was to be delivered to Bainbridge in four days, but was not delivered within that time. Freight charges for the shipment totaled $937.76. When the railroad sued the shipper to collect the freight charges, the shipper counterclaimed for $5,200 contending that this was its monetary loss as a result of working time lost due to the delay in shipment of the backhoe. The railroad filed affidavits and moved for summary judgment which was denied. The railroad then propounded interrogatories to the shipper which were answered and after this expansion of the record, the railroad again moved for summary judgment. The trial court found that the shipper had not complied with the requirement of the railroad’s bill of lading that a written claim for loss or damage must be filed by a shipper with the railroad within nine months after delivery of the freight in question. Upon making this finding of fact, the court entered judgment for the railroad for the amount of the freight charges and granted the railroad’s motion to dismiss the counterclaim. We affirm.

1. In Outlaw v. Transit Homes, Inc., 145 Ga. App. 695, 697 (244 SE2d 633) (1978) we recognized the applicable federal law which defines the scope of liability of interstate common carriers to holders of bills of lading. "Transactions involving the interstate transfer of property by a common carrier are controlled by the Carmack Amendment to the Interstate Commerce Act, 49 USCA § 20 (11). This Amendment requires a carrier to issue a bill of lading for properties received for transportation in interstate commerce and permits the carrier to require that all claims against it be filed within a specified period, as long as that period is at least nine months.” The Georgia Public Service Commission has adopted Uniform Freight Classification 13, ICC 9, July 11, 1978 as the tariff to be followed on intrastate shipments by railroad common carriers in Georgia. Included in the tariff (p. 495) is the Uniform Straight Bill of Lading to be used for such shipments; Section 2 (b) of the Contract Terms and Conditions of the Uniform Straight Bill of Lading contains the Carmack language. As our Public Service Commission has adopted this tariff for intrastate shipments, it follows that the holding in Outlaw, supra, should apply to intrastate shipments. Even if it did not apply, failure to file a claim in writing within nine months from date of delivery or the date damage occurred would bar recovery under the express terms of the contract (bill of lading).

Argued March 6, 1979 Decided June 5, 1979. H. Dale Thompson, for appellant. Jones, Cork, Miller & Benton, Wallace Miller, III, Rufus D. Sams, III, for appellee.

2. The shipper further contends that the railroad, having made a motion for summary judgment which was denied, was estopped from again seeking summary judgment which was granted. Code Ann. § 81A-156 (b) provides, in pertinent part, that "a party against whom a claim, counterclaim, or cross-claim is asserted... may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof.” There is nothing in the statute limiting the number of times a party may make a motion for summary judgment. This court has held "[t]hat the prior denial of summary judgment did not foreclose the subsequent grant of summary judgment is manifest in the statutory dictate that an 'order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.’ CPA § 54 (b) (Code Ann. § 81A-154 (b)).” Fierer v. Ashe, 147 Ga. App. 446 (249 SE2d 270) (1978).

Denial of a motion for summary judgment decides nothing except that under the evidence before the court at that time there can be rendered no judgment as a matter of law. The previous denial of summary judgment does not preclude a subsequent granting thereof on the basis of an expanded record. Ellington v. Tolar Const. Co., 142 Ga. App. 218, 221 (235 SE2d 729) (1977).

Judgment affirmed.

Banke, Acting P. J., concurs. Carley, J., concurs specially.