Bell v. Fitz

1. The responsibility of a common carrier as an insurer of goods under Code § 18-102 commences where there has been a complete delivery for the purpose of immediate transportation.

2. Such delivery is not complete if anything remains to be done by the shipper before the goods can be shipped; and if the shipment is delayed by his request, the liability of the carrier ordinarily is only that of a warehouseman during such delay, and he cannot be charged with the loss of the goods if, while they were in his custody pending instruction from the shipper, he exercised ordinary care.

3. There was evidence in this case that the shipment was delayed at the request of the shipper and that during such delay the goods were damaged by fire, from which the jury would have been authorized to infer that at the time of the fire the carrier was acting as a warehouseman.

4. It was error for the trial court to instruct the jury to disregard the defense of the defendant that at the time of the fire he was acting as a warehouseman, and not as a common carrier of goods, and to deprive the defendant of this defense by failing to instruct the jury in regard thereto.

DECIDED NOVEMBER 13, 1948. The record shows that C. E. Fitz and Beatrice Fitz, his wife, were formerly residents of Philadelphia, Pennsylvania, or a suburb thereof. Being in contemplation of moving to Houston, Texas, they consigned and delivered possession of their household furniture to J. D. Bell, the defendant, who operated a motor transit and warehouse business in Philadelphia, receiving in return a bill of lading on the household effects to Houston. This transaction apparently was consummated on or about July 31, 1945, and the agreement was that the furniture was to proceed to Houston on the first available truck, and within a month at the latest. On August 29, 1945, Mr. Fitz wrote to Mr. Bell and requested that the furniture be not shipped until Mr. Bell received further notice from the consignor because the Fitzes' plans had been changed due to the ending of the war. Then on October 24, 1945, Mrs. C. E. Fitz wrote to Mr. Bell requesting that the furniture be shipped to Dalton, Georgia, or to the nearest available shipping point, at the earliest time possible since they had decided to settle at Dalton. It appears from the testimony of the defendant Bell, however, that on October 11, 1945, a fire which injured the property occurred in his warehouse. The plaintiff was notified of this damage on October 31, 1945, by telegram; and the furniture was ultimately shipped to the plaintiff on or about January 6, 1946. The plaintiffs attached the truck in which the furniture was shipped upon its arrival in Dalton, alleging as damages the injury to the furniture while in the hands of the defendant as a common carrier. The defendant interposed the defense that the furniture was injured while he was acting in the capacity of a warehouseman, and not as a common carrier; and filed a counterclaim for freight or delivery charges and for damages for the detention of the truck which had been attached. After evidence to this effect was introduced, the court charged the jury to disregard the defendant's defense that at the time of the injury to the property he was a warehouseman, and not a common carrier, and to disregard the defendant's counterclaim, and instructed the jury solely on the law in regard to the responsibility of the defendant as a common carrier. Verdict and judgment were entered for the plaintiff, following which the defendant moved for a new trial on the general and four special grounds, which special grounds in substance alleged as error the court's instruction to the jury to disregard the defendant's defense that he was a warehouseman at the time of the fire, the court's instruction to the jury on the sole basis of the defendant's responsibility as a common carrier, and the court's failure to instruct the jury as to the defendant's responsibility as a warehouseman if he were found to be such, alleging that the court had expressed an opinion, had deprived the defendant of a defense and had failed to charge the law on a material issue in proof. The motion for a new trial was overruled, to which judgment the defendant excepted. We think the defendant's exceptions to the charge of the court and to the overruling of his motion for a new trial on those grounds are well founded.

On the reverse of the bill of lading is found the following stipulation: "(d) The carrier's liability shall be that of a warehouseman, only, for loss, damage, or delay caused by fire occurring after the arrival of the property at destination or at the port of export (if intended for export) and tender of delivery of the property to the party entitled to receive it or at the address given for the delivery has been made. Except in case of negligence of the carrier or party in possession the carrier or party in possession shall not be liable for loss, damage, or delay occurring while the property is stopped and held or stored in transit upon the request of the shipper, owner, or party entitled to make such request, whether such request was made before or after the carrier comes into possession of the property." Such stipulation is a restatement of the law which is controlling on the facts which are revealed by the record as hereinbefore set forth.

Code § 18-306 provides: "Commencement and termination of responsibility. — The responsibility of the carrier shall commence with the delivery of the goods, either to himself or his agent, or at the place where he is accustomed or agrees to receive them, and shall cease with their delivery at destination according to the direction of the person sending or according to the custom of the trade."

"In Wilson v. Atlanta Charlotte Ry. Co., 82 Ga. 386 (9 S.E. 1076), Chief Justice Bleckley said: `The great and controlling question in the case was, as to whether the wood was delivered to the company and accepted by it for shipment. The court charged the jury, in substance, that delivery is complete when, actually or in legal effect, the possession is surrendered to the carrier, and the owner abandons all control over the goods until the carriage is complete, and that not until this has been done does the responsibility of the carrier commence, either for loss or detention.' In that case the court ruled that the instructions of the lower court were correct." Powell v.Jerome, 73 Ga. App. 257, 262 (36 S.E.2d 371).

"The relation of shipper and carrier does not begin between the owner of goods and a railway company, though the former may have delivered the goods to the latter, if after such delivery anything required either by law or the contract remains to be done by the shipper: and in such case the rights and liability of the company are those only of a warehouseman." Dixon v.Central of Georgia Ry. Co., 110 Ga. 173, 174 (5) (35 S.E. 369).

"The carrier's liability for goods as a carrier begins when they are delivered to it ready for immediate transportation. In Barron v. Eldredge, 100 Mass. 458 (1 Am. R. 126), the rule is thus stated: `The responsibility of a common carrier for goods intrusted to him commences when there has been a complete delivery for the purpose of immediate transportation. . . The delivery must be for immediate transportation, and, of course, it can not be complete if anything remains to be done by the shipper before the goods can be sent on their way.' `If a common carrier,' to quote Moore on Carriers, `receives goods into his own warehouse for the accommodation of himself and his customers, so that the deposit there is a mere accessory to the carriage and for the purpose of facilitating it, his liability as a carrier will commence upon receipt of the goods, but, on the contrary, if the goods when so deposited are not ready for immediate transportation, and the carrier can not make arrangements for their carriage to the place of destination until something further is done, or some further direction is given or communication made concerning them by the owner, or consignor, the deposit must be considered to be in the meantime for his convenience and accommodation, and the receiver, until some change takes place, will be responsible only as a warehouseman.' Moore on Carriers, 130. A contract imposing upon the carrier the exclusive duty of safe-keeping may be implied by usage or a particular course of dealing between the parties. But the implication that the carrier assumes the duty of immediate transportation and so responsibility as an insurer, without knowing to what place and to whom goods are to be shipped, must be clear." Central of Georgia Ry. Co. v. Sigma Lumber Co.,170 Ala. 627 (54 So. 205, Ann. Cas. 1912 D, 965). See also 22 A.L.R. 970, 113 A.L.R. 1459, § III (c) (notes), wherein numerous cases are cited supporting the proposition that the giving of shipping directions in some form, expressly or impliedly, has always been considered essential to a completed delivery which causes the liability of the carrier as an insurer to arise.

It is a well-settled principle of law in this State that "when goods which have been received by a railroad company for transportation to a given station on its line of road, and delivery there to the consignee of the same, reach their destination and are there deposited by the company in its freight warehouse, for safekeeping until delivered to such consignee, the general rule is that the responsibility of the company as a common carrier ceases and its liability as a warehouseman begins." Kight v. Wrightsville c. R. Co., 127 Ga. 204 (1) (56 S.E. 363) and cit. See also Allen v. Southern Ry. Co.33 Ga. App. 209 (126 S.E. 722); Central of Georgia Ry. v.Leverette, 34 Ga. App. 304 (129 S.E. 292); McCarty v. N.Y. Erie R. Co., 30 Pa. 247; 67 C. J. 495, § 83.

It thus appears from these quotations from various authorities that the liability of the common carrier in case of loss, for which there is no excuse unless the loss was occasioned by the act of God or the public enemies of the State (Code, § 18-102), exists only, in the absence of an express or implied contract to the contrary (which was not shown in evidence here), when the carrier is in complete possession and control of the goods for immediate shipment with nothing remaining to be done by the shipper to complete the consignment to him for the purpose of carriage, and only until the goods are delivered to their destination and notice given to the consignee. It is true that in the present case there was an initial delivery of this complete character; however, by subsequent alteration of the contract in writing, the owner withdrew his directions to the carrier as to the point of destination and instructed the carrier to hold the goods until he received further instructions as to the place to which they were to be shipped. It thus appears that there was evidence in the case to authorize a finding that at the time of the destruction of the goods the shipper had withdrawn his delivery of the goods to the carrier for the purpose of immediate shipment and that something remained to be done by him to reinvest the carrier with such complete possession and control of the goods as to cause his liability as an insurer to arise. We have been referred to no principle of law preventing a finding that, and we have found no cases holding that, the shipper can not thus withdraw immediate shipping orders from the carrier before the goods have been delivered to the original destination and substitute an order to him to hold the goods until further notice, thus relieving the carrier of his obligation as an insurer until a new destination and immediate shipping orders were again given and making of the carrier a warehouseman until such occurrence. There being evidence in the case to support this view, we think that the trial judge erred in instructing the jury to disregard this defense of the defendant and in depriving the defendant of this defense by failing to instruct the jury in regard thereto.

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