Atlantic Coast Line Railroad v. Stovall-Pace Co.
Atlantic Coast Line Railroad v. Stovall-Pace Co.
Opinion of the Court
Stovall-Pace Company brought suit against the Atlantic Coast Line Bailroad Company, the last of certain connecting carriers, for the loss of one case of Suncook Chambray, No. 16193, containing 1779 1/4 yards at 6 1/2 cts. per yard, of the value of $111.20, delivered on the 14th of August, 1914, to the New York, New Haven & Hartford Bailroad Company at East Dedham, Mass., routed over the lines of the Merchants & Miners Transportation Company and the Atlantic Coast Line Bailroad Company, and consigned by Wellington-Sears & Co. to the plaintiff at Augusta, Ga. A verdict for the plaintiff was rendered, the defendant’s motion for a new trial was overruled, and the movant excepted.
On a former trial a demurrer of the defendant was overruled by the trial court, and this court held, on review (24 Ga. App. 248, 100 S. E. 657), that / the allegations were sufficient to show that the loss was caused by negligence of the defendant,” and that therefore, under the pleadings in question, the responsibility was not on the original carrier alone, binder this ruling this action is one ex delicto, and the rules of law pertaining to such an action are applicable. Since the rulings on the five grounds of the original motion for a new trial are largely dependent on the rulings on the eight grounds -of the amendment thereto, the latter will be treated first; and in view of the length of the grounds, and the fact that the rulings on some are dependent upon the rulings on others, only such portions thereof as we deem necessary for the purposes herein will be referred to.
Ground 6 complains of the admission in evidence of a bill of lading, which is in part as follows: “Beceived, subject to the classifications and tariffs in effect on the date of the receipt by the carrier of the property described in the original bill of lading, East Dedham, Mass. 8/14/1914, from Suncook Mills, the property described below, in apparent good order, except as noted (contents or condition of contents of packages unknown), marked,
Grounds 7 and 8 of the motion for a new trial allege that the court erred in admitting in evidence the following letter written by the agent of the defendant company to the attorney of the plaintiff: “Oct. 25, 1916. John J. Jones, atty. at law, Augusta, Ga. Dear Sir: With reference to your favor of several days ago regarding claim filed by the Stovall-Pace Dry Goods Company for $111.20, I beg to advise that I have referred your letter to Mr. A. II. Shepard, freight claim agent, Wilmington, N. C., on whose instructions we declined this claim previously, and beg to quote belo'w answer received from Mr. Shepard: ‘Your claim A-3036. I am in receipt of your favor'Oct. 16, 1916, together with letter from'John J. Jones, attorney at law, with reference to claim of Stovall-Pace Co., 'amount $111:20, T beg to say that the position of the A. C. L. Bailroad has been outlined in previous correspondence, our. investigation having developed that the shipment in question was delivered consignees, we holding clear receipt. We, therefore, can admit of no liability, and the claim appears to have been properly declined.’ Yours very truty, Ií. B. Walker, Agent.” The objections in part to this letter were that the statements in it were hearsay; that there was no evidence that Walker had authority to bind the defendant company by his quotations or'statements in the letter; that there was no evidence to show the genuineness of the quoted letter from Shepard to Walker,'or Shepard’s authority to represent the company and bind it by his statements; 'and that the court erred in admitting the letter in evidence, on the groimd that it had been sufficiently proved to have been signed by Walker. As to the authority of Walker we find that the evidence shows that I-I. II. Stafford testified “that he knew well II. B. Walker, and that he was freight and dejoot agent of the Atlantic Coast Line Bailroad Company at Augusta for a number of' years, including the year 1914;” and B. H. Daniel testified that the demand for
We do not think there is any merit in the contention that the quotation from Shepard contained in said letter was hearsay. Had Walker said, “ I heard Mr. Shepard say that the shipment in question had been delivered to consignees,” then it might have been subject to this criticism; but Walker in his own letter quoted the letter from Shepard, and stated as a positive fact that he had received that letter from Shepard. The quotation from Shepard, freight claim agent, was in effect an- admission that the defendant company had received the goods in question, and “ an admission may be contained in a writing including writings of the character which are customarily employed in mercantile affairs, which the party has made or adopted22 Corpus Juris, 302, par. 337. “Admissions, in the law of evidence, have been defined as being concessions or voluntary acknowledgments made by a party of the existence of certain facts. . . . More accurately regarded, they are statements by a party or some one identified with him in legal interest,- of the existence of a fact which is relevant to the cause of his adversary.” Id. 269, par. 323. A corporation must necessarily act through its officers and agents, and the evidence undoubtedly shows that Shepard had authority to act, and that his acts and instructions were those of the principal in this department over which he had charge. Walker, the local
The 9th ground of the motion for a new trial alleges that the evidence fails to show that “ defendant had actually received the goods claimed to have been lost, . . or what was the contents of the box mentioned in its bill of lading.” The letter from Walker, the agent of the defendant company, heretofore referred to, in effect contained an admission that the lost goods had been received by the defendant company, in which letter said agent adopts the admission of the freight claim agent who said “the shipment in question was delivered to consignees.” The only reasonable construction of this statement, under all the facts, is that the defendant admitted receiving the goods but claimed to have delivered them. “ What was the contents of the box
The 10th ground alleges that there was no evidence of the value of the goods alleged to have been lost. E. H. Daniel testified that the package lost contained 1779 14 yards of Suncook Chambray invoiced at 6 1/2 cents per yard, amonting to $111.20, which amount plaintiff paid to Wellingt'on-Sears & Co. for these goods, and that the goods were staple merchandise. This value does not include the freight which plaintiff claims to have paid, but the defendant will not be heard to complain of this. The value proved was the invoice price or contract price between the seller and the purchaser of the goods, with the additional evidence that it was staple merchandise. As a general rule, where one of the parties concerned is not a party to the contract of sale, evidence of the cost of property, without more, is not sufficient proof of its market value, but the cost of the property may be considered in connection with other fads, and the “ cost is a circumstance the proof of which can go to the jury . . as a fact relating to the value.” Sou. Ry. Co. v. Williams, 113 Ga. 336 (38 S. E. 744). While the evidence as to the value of the goods in this case is not entirely satisfactory in that the proof of the value is not in full accordance with the general method of proving value in cases of this character, still we cannot say that there were not enough “ other facts,” in addition to the evidence as to the invoice price, to authorize the jury to pass 011 the question of value. For
The 11th ground of the motion complains of the refusal of a certain request to charge. Since the entire charge was not specified as a part of the record and is not before this court, we cannot test the sufficiency thereof or say that any necessary instruction has been omitted. Sovereign Camp W. O. W. v. McDaniel, 20 Ga. App. 430 (4) (93 S. E. 105).
The 12th ground alleges error because the verdict includes interest, $54.37. In Tifton, Thomasville & Gulf Ry. Co. v. Butler, 4 Ga. App. 191 (2 b) (60 S. E. 1087), this court held: “In an action of the character referred to above, a verdict in the following form: ‘We, the jury, find for the plaintiff $6,265.02 principal, and 7 per cent, interest for 4 years and 4 months, $1,863.68 interest — -$8,128.70 total/ is irregular, but not illegal. It will be upheld as a finding for $8,128.70 damages.” And in ihe opinion (p. 193) Judge Powell, speaking for the court, said: “The allowance of interest as a part of the damages given in such cases is a matter addressed to the discretion of the jury; but we think that this discretion means, not a decision by mere whim or caprice, but a sound legal discretion, determinable by the particular facts of the case.” See cases cited. While the verdict in the instant case stating the principal, interest, and total amount is irregular in form, we think the facts and circumstances of this particular case authorized the jury to compute the interest at 7 per cent, on the proved value of the goods in arriving
Ground 13 of the motion for a new trial complains that the verdict is contrary to. certain quoted excerpts from the charge, for the reason that “ there is. no evidence that the initial carrier delivered the goods in question to defendant.” Our ruling on grounds 7 and 9 of the motion disposes of this ground. As shown in those grounds, the letter from the agent of the defendant company, held to be admissible in evidence, virtually admitted that the defendant received the shipment in question, but claimed to have delivered them to plaintiff.
The first three grounds of the motion are the general grounds, and are without merit. Under our ruling on the last eight grounds as hereinbefore set-out,'the verdict was sufficiently supported by evidence and was in accordance with law. Briefly, the evidence clearly showed that the plaintiff ordered these goods, paid a specific sum for them, received a bill of lading for them, but never received the goods; and that the defendant company received the shipment, and claimed to have delivered it and to hold a clear receipt, but the receipt was never produced and delivery was not shown.
The 4th ground of the motion, that the verdict is excessive, is covered by our ruling on the 10th ground, pertaining to the value fixed by the jury, and the 12th ground, pertaining to interest.
The 5th ground, that the verdict is contrary to the charge of the court, cannot be considered. The entire charge of the court is not specified as a part of the record, and is not embodied in the record transmitted to this court; and such a ground adds nothing to the other general grounds of the motion for a new trial, since it is merely the equivalent of an allegation that the verdict is contrary to law. See Bowden v. Bowden, 125 Ga. 107 (3), 108
The trial judge did not err in overruling each and every ground of the motion for a new trial.
Judgment affirmed.
Reference
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- ATLANTIC COAST LINE RAILROAD CO. v. STOVALL-PACE CO.
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