Atlanta, Birmingham & Coast Railroad v. Patterson , 73 Ga. App. 551 ( 1946 )

1. Where a shipment of property is being transported, on a through bill of lading, over two lines of common carriers, from a point in one State to a point in another State, and the shipment, while in transit, is damaged or lost by the negligence of either carrier, the delivering carrier is liable to the lawful holder of the bill of lading for such loss or damage.

2. The petition as finally amended set forth a cause of action; but in paragraph 6 thereof certain items of special damages were alleged. Those items were demurred to on the ground that such damages were not recoverable in this action. That part of the petition was subject to the special demurrer, and the overruling of that demurrer was error.

DECIDED MARCH 14, 1946. C. L. Patterson, for himself, and for the use of Jesse Perry, brought an action, against the Atlanta, Birmingham and Coast Railroad Company to recover alleged damages occasioned by injury to ten mules owned by Patterson and Perry (7 by Patterson and 3 by Perry), while being shipped from Troy, Alabama, to Douglas, Georgia. The petition as finally amended stated substantially as follows: On December 21, 1944, Patterson and Perry, residents of Douglas, Georgia, bought 24 mules at Troy, Alabama, and on that day delivered them to the Atlantic Coast Line Railroad Company for shipment on a through bill of lading from Troy, Alabama, to Douglas, Georgia. The mules were transported by the above named company (the initial carrier) and by the defendant company (the delivering carrier). A copy of the bill of lading was attached as an exhibit to the petition and disclosed that the shippers were "Renfroe Ballard," and that the consignee was "C. L. Patterson C. Company." The petition alleged that C. L. Patterson is the lawful holder of the bill of lading because "C. L. Patterson C. Company" was merely the nominal consignee of the bill of lading, and had executed in writing an assignment thereof to C. L. Patterson, who was the owner of the mules and the real holder of the bill of lading, and that Jesse Perry, "in writing, and for a valuable consideration, and to protect his interest in the mules owned by him, had assigned to C. L. Patterson all his right, title, interest, and equity in and to the bill of lading, with full substitution in the premises." The petition further alleged that the mules were sound and in good health when received by the initial carrier; and, when delivered by the defendant carrier to Patterson, the mules were without "any visible or manifest injury, but in damaged condition." They were delivered about noon, on December 23, 1944, and were unloaded and taken to the stables of Patterson and Perry, where they were given wholesome feed and pure water. Seven of the mules owned by Patterson, and three owned by Perry, died within 24 hours after their delivery. On account of having been permitted, while in charge of said carriers, to drink contaminated water or to eat unwholesome and poisonous food, the ten mules in question were not safely transported by said carriers to the consignee, and died because of improper care while in transit over the lines of the two carriers, and the defendant carrier is liable to the plaintiff for the damage caused by the failure of the carriers to safely transport said mules. "How, when, or where, or by whom, said mules were allowed to drink contaminated water or to eat poisonous feed, or how they were improperly cared for in transit, what acts and things were done or omitted to be done, the particular thing that was the proximate cause of the death of the mules, are, except as herein set forth, matters peculiarly within the knowledge of said carriers, their agents, or employees." The petition further alleged that on February 16, 1945, a claim was filed in the name of C. L. Patterson, "then and now the lawful holder of said bill of lading," with the defendant carrier, in which said damage and loss were fully set forth, said claim having been filed within 9 months after the date of the damage and loss; and that on June 20, 1945, said carrier gave written notice to the claimant that it had disallowed the claim; and that this suit was filed within two years thereafter. The plaintiff alleged that the full value of the ten mules, when alive, was $2132.60, and that this sum included the plaintiff's cost for his trip to Alabama to buy the mules, the cost of the freight of the ten mules from Troy, Alabama, to Douglas, Georgia, a veterinary's bill for doctoring them, and the expense of burying them.

The petition was demurred to, generally and specially. All of the demurrers were overruled, and that judgment is assigned as error. 1. Were the general demurrers properly overruled? Counsel for the defendant carrier contend that the petition should have been dismissed, on the ground that it failed to show that the damage to the mules, if they were damaged while they were in transit, occurred while they were being transported by the defendant carrier. They admit that the initial carrier would be responsible for any negligence of a connecting carrier which caused damage to a shipment being transported, on a through bill of lading, from one State into another State, but they contend that the delivering carrier is liable only for its own negligence, and they cite many decisions to support that contention. However, those decisions were evidently rendered prior to the amendment to paragraphs 11 and 12, § 20, Title 49, U.S.C.A. Those paragraphs as so amended are set forth in 49 U.S.C.A. § 20 (pars. 11 and 12), and provide that the delivering carrier, as well as the initial carrier, is liable for all damage to property, received for interstate transportation by the initial carrier, on a through bill of lading, caused by any of the participating carriers. And that amendment was passed many years before the date of the instant transaction. In note 64 of 49 U.S.C.A. § 20 (11) it is said: "By the Newton amendment of March 4, 1927, c. 510, 44 Stat. 1448, 49 U.S.C.A. § 20 (11), a further change was made by making the transportation company delivering the property liable for damages occurring on lines of a preceding carrier where a through bill of lading was issued. Alwine v. Pennsylvania R. Co., 141 Pa. Super. 558 (15 A.2d, 507)." The defendant contends also that the bill of lading contained stipulations that the carrier would not be liable for any damage to the livestock "caused by the act of God, the public enemy, quarantine, the authority of law, the inherent vice, weakness, or natural propensity of the animal, or the act or default of the shipper or owner or the agent of either, or by riots, strikes, stoppage of labor, or threatened violence, or by the overloading of the livestock, crowding one upon another, escaping from car, pens or vessel, kicking or goring or otherwise injuring themselves or each other, suffocation, fright, or fire caused by the shipper or his agent, heat or cold, changes in weather, or delay caused by stress of weather, or damage to or obstruction of tracks or other causes beyond the carrier's control;" and that, since the petition did not allege that the damage sued for was not caused by any of these things, it failed to set out a cause of action.

We can not agree with this contention. If the damage was so caused, it was a matter to be set up by the carrier as a defense, and the petition having alleged certain specific acts of commission as the negligence of the defendant, it was unnecessary to therein negative such matters. Central of Ga. Ry. Co. v.Bagley, 121 Ga. 781, 782 (49 S.E. 780). "There being nothing in the allegations of the present petition from which it can be inferred that the death of the animal in question was due to its inherent viciousness or to the failure of its owner to exercise ordinary care for its safety, the trial judge erred in sustaining the general demurrer and dismissing the case." Weatherington v.Ga. c. Ry. Co., 17 Ga. App. 584 (3) (87 S.E. 844).

The petition was also demurred to on the ground that it failed to show that the plaintiff was the lawful holder of the bill of lading, and therefore he was not entitled to recover the damages sued for. In view of the amendments to the original petition, the ground is without merit. Moreover, "there are many cases holding that though the consignee may not be the real owner, if he has a special interest in the property shipped, he may maintain an action for the loss or for any damage to such property in transit, and in such action may have a recovery of the full value of the property where lost, or the full amount of damages to the property where it is damaged. The ownership need not be extensive, and an agent, factor, broker, bailee, or other person having rights in the property to be protected may maintain an action and recover both for himself and the general owner."Southern Ry. Co. v. Miko, 136 Ga. 272 (71 S.E. 241, 36 L.R.A. (N.S.) 68); Allen v. So. Ry. Co., 33 Ga. App. 209 (126 S.E. 722).

In our opinion the petition as finally amended set out a cause of action against the defendant, and the general demurrers were properly overruled.

"In an action by the owner of livestock against the terminal carrier for damages to the livestock during an interstate shipment, evidence that the livestock was unaccompanied by the owner or caretaker, and was received for shipment by the initial carrier in good condition and delivered at destination by the terminal carrier in injured or damaged condition, was sufficient to make out a prima facie case for the plaintiff." Wilson v. Pennsylvania R. Co., 135 Ohio St. 560 (21 N.E.2d, 865); Bancroft v. Yazoo c. Co., 194 La. 115 (193 So. 481); Bonfigliov. New York c. Co., 292 Mass. 287 (198 N.E. 236).

2. The paragraph of the petition, seeking recovery of the expense of the plaintiff's trip to Troy, Alabama, when he bought the mules, the cost of the freight of the ten mules in question, the amount of the veterinary's bill for doctoring them, and the expense of burying them, was demurred to on the ground that such expenses were not proper items of damage for a recovery in this action.

Counsel for the plaintiff cite in their brief the Code, § 105-2004, which reads, "In all cases necessary expenses consequent upon the injury done are a legitimate item in the estimate of damages;" but they failed to cite any decision, and we have found none, where that section has been held to cover such items of damage as the above-stated ones. On the contrary, said counsel frankly state in their brief "that the interstate commerce act governing the liability of the carrier in interstate shipments is separate and distinct from the quoted provision [ § 105-2004] of the Georgia Code."

We think that the petition was subject to this ground of special demurrer, and that the court erred in overruling that demurrer.

In view of the amendments to the original petition, the other grounds of special demurrer are without substantial merit.

The judgment is reversed solely on account of the above-stated error.

Judgment reversed. MacIntyre and Gardner, JJ., concur.