26 S.E.2d 658

A. A. A. HIGHWAY EXPRESS INC. v. BONE HENDRIX.

29974.Court of Appeals of Georgia.
DECIDED JULY 14, 1943. REHEARING DENIED JULY 27, 1943.

The evidence is insufficient to show that the goods shipped by the defendant carrier were damaged while in transit and before delivery at the point of destination. The verdict for the plaintiffs was without evidence to support it.

DECIDED JULY 14, 1943. REHEARING DENIED JULY 27, 1943.
Certiorari; from Muscogee superior court — Judge Fort. November 24, 1942.

Bone Hendrix brought suit in the municipal court of Columbus against A. A. A. Highway Express Incorporated for $36.86 and interest, representing the value of thirty-eight bushel hampers of beans alleged to have been frozen and thereby rendered worthless because of the defendant’s negligence while said beans were in its possession and being transported by it as a common carrier from Atlanta, Georgia, to Columbus, Georgia.

The defendant denied that it was indebted to the plaintiffs in the amount sued for, or in any other amount whatsoever. The plea also included a denial of the facts alleged by the plaintiffs as establishing liability against the defendant, including the allegation that the beans became frozen while in the possession of the defendant.

On the trial of the case the following material evidence was adduced: A. E. Bone testified that he was a member of the partnership of Bone Hendrix, the plaintiffs, and that on the afternoon of November 15, 1940, he telephoned the Warnock Fruit Company in Atlanta to purchase on behalf of the plaintiffs 38 hampers of snap beans, and instructed the seller to ship the beans by the A. A. A. Highway Express Incorporated, so that the beans would arrive in Columbus about 6 o’clock on the morning of November 16th; that on the morning of November 16th one of the plaintiffs’ trucks picked up the beans in Columbus from the defendant and carried them to Fort Benning; that later on that same morning he was informed that the beans had been rejected by the quartermaster at Fort Benning because they were frozen; that they were brought back to the plaintiffs’ place of business in Columbus where the witness opened several of the hampers and discovered that the beans were frozen and worthless. He testified that the market value of beans in Columbus on that day was $1.25 to $1.50

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per hamper, but that he had sold the beans for 97 cents per hamper which was the amount sued for. He also testified that there was attached to the suit a copy of the claim for damage to the shipment, which he had filed with the defendant more than sixty days before the suit was filed. Ray E. Bone testified that he was employed by Bone Hendrix, the plaintiffs, to operate a truck, that on the morning of November 16 he called at the defendant’s place of business and picked up some beans for delivery to the quartermaster at Fort Benning; that the quartermaster’s department rejected the beans because they appeared to be frozen; that on November 16, 1940, the morning the beans were received, the weather was considerably below freezing; that the beans were rejected because they were frozen. L. A. Warnock testified that he was a produce dealer in Atlanta operating under the name of Warnock Fruit Company; that on the afternoon of November 15, 1940, Mr. A. E. Bone of Columbus phoned him and requested him to purchase for Mr. Bone’s account 38 hampers of beans and ship them to Columbus by one of the trucks of the A. A. A. Highway Express Incorporated, so that they would arrive in Columbus in the early morning; that late in the afternoon he purchased 38 hampers of beans at 60 cents per hamper from a dealer in Atlanta who had them on an open platform; that the witness examined every one of the hampers and found the beans to be in good condition, and not frozen at that time; that this was late in the afternoon, about 5 o’clock; that he does not know how long this dealer had had the beans, or from whom the dealer had purchased them; that the witness, after buying the beans, caused them to be hauled to his place of business, and called the A. A. A. Highway Express Incorporated to pick up the beans; that the pick-up truck of the express company called about 7:30; that the witness told the truck driver that the hampers contained beans and that they might freeze if allowed to ride in the night air; that the temperature was then 33 degrees; that after the witness purchased the beans he stored them in his warehouse, where they remained for an hour or so; that the temperature in the warehouse was about 60 degrees. E. I. Hyde testified that he was the agent in charge of the office and place of business of the defendant express company in Columbus, Georgia; that on the morning of November 16, 1940, sometime about 9 o’clock, the beans arrived, and Bone Hendrix, the plaintiffs, were at once

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notified and sent a truck to pick them up; that later in the day the beans were brought back to the office, the contention being that they were frozen; that the beans were placed in the company’s warehouse; that he examined them, and so far as he could tell they were not frozen, although he really did not know whether they were frozen or not; that it was very cold the morning the beans arrived, and after they came they were placed in the express company’s warehouse, and in a few minutes were picked up by Bone Hendrix. This witness further testified that after the plaintiffs had brought the beans back to the defendant in Columbus, contending that the beans were frozen, he, under instructions from Atlanta [meaning from the officials of the defendant in Atlanta], shipped the beans to Atlanta; that the transportation charges of $4.33 were not paid when the beans were delivered to the plaintiffs; that the defendant permits its customers, “like Bone Hendrix,” the plaintiffs, to receive their shipments and make payment of the charges later. J. S. Benton testified, that he was secretary of the defendant express company with an office in Atlanta; that the express company received a request from Warnock Fruit Company about 7 p. m. on November 15, 1940, to pick up a shipment of beans for Columbus; that about 8 o’clock these beans were picked up by one of the company’s pick-up trucks and brought to the company’s warehouse about 8:30; the beans were removed from the van into the company’s warehouse and shortly thereafter placed in one of the company’s trucks which operates to Columbus; that this truck was at the time being loaded in the customary way with freight for transportation to Columbus; that the truck was backed up to one of the large doors opening into the warehouse, and the beans were placed in the truck towards the front end; that the doors of the truck remained open while the loading was taking place; that this loading continued for some time, and after the loading was completed the doors of the truck were closed; that the truck left for Columbus between 2 and 3 o’clock in the morning; that it did not break down on its trip, but proceeded without delay; that the truck was carefully constructed and suitable for cold weather transportation of vegetables, beans, etc., but was not equipped with any special heating apparatus; that none of the trucks which do transportation in the south was so equipped; that the shipment was accorded the same handling that the company

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accords all other shipments of similar produce, and was handled by the company in its customary manner, and in the manner that other transportation companies in the south handle their shipments; that when the company’s pick-up truck called at the Warnock Fruit Company, the driver was told that the beans would freeze if allowed to ride in the open air; that while the beans were in the express company’s possession they were not allowed to ride in the open air or to be stored in the open air; that it was quite cold on the night of November 15, 1940; that according to the report of the United States Department of Commerce Weather Bureau the temperature at the Atlanta, Georgia, air port at 12:30 p. m. on November 15, 1940, was 30 degrees; that at 6:30 p. m. the temperature was 28 degrees; that in the City of Atlanta it is probable that the temperature will vary one or two degrees from the temperature at the air port; that at the time the beans were picked up the temperature was already below freezing in Atlanta; that under the terms of the shipping contract the shipper was authorized to sell any freight under such circumstances in order to salvage as much as possible; that the company sold the beans for 25 cents per hamper. There appeared in evidence the weather report issued by the weather bureau showing the temperature to have been as testified by J. S. Benton. This witness further testified that several days after the beans had been returned to the defendant’s office in Columbus by the consignee, they were, at the witness’s request, returned to Atlanta where the witness sold them for 25 cents per hamper, pursuant to the terms of the shipping contract which authorized a sale of freight “under such circumstances in order to salvage as much as possible.”

The case was tried before the judge without a jury, who found for the plaintiffs in the sum of $32.53, with interest. The defendant moved for a new trial on the general grounds, one of which was that the verdict was without evidence to support it. This motion was overruled, and the defendant’s petition for certiorari, in which it excepted to the judgment overruling the motion for new trial, was, by the judge of the superior court, “overruled,” and the judgment overruling the defendant’s motion for new trial “affirmed.” To this judgment the defendant excepted.

R. J. Reynolds Jr., Theo J. McGee, for plaintiff in error.

John G. Cozart, contra.

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STEPHENS, P. J. (After stating the foregoing facts.)

The liability of the defendant carrier necessarily depends on the beans having been frozen after they were delivered to the carrier in Atlanta and before delivery to the plaintiffs in Columbus. It is only where loss or damage to a shipment of goods by a carrier occurs after the goods have been received by the carrier and before delivery by the carrier to the consignee at the point of destination that there is any presumption of liability by the carrier. Code, § 18-102, reads as follows: “Carriers as such are bound to exercise ordinary diligence. Common carriers as such are bound to use extraordinary diligence, and in cases of loss the presumption of law is against them, and no excuse avails them unless the loss was occasioned by the act of God or the public enemies of the State.” Louisville Nashville Railroad Co. v Warfield, 129 Ga. 473 (2) (59 S.E. 234); Southern Railway Co. v. Standard Growers Exchange, 34 Ga. App. 534
(130 S.E. 373); Ohlen v. Atlanta W. P. Railroad, 2 Ga. App. 323
(58 S.E. 511). There is no evidence whatsoever, either positive or circumstantial, as to the condition of the beans when delivered to the plaintiffs by the defendant carrier. It appears from the testimony of E. I. Hyde, the agent of the defendant in charge of its office and place of business in Columbus, that the beans arrived in Columbus at about 9 o’clock on the morning of November 16, 1940; that it was very cold that morning, and that after they arrived the defendant placed the beans in its warehouse, but that in a very few minutes they were picked up by the plaintiffs. There is no evidence as to the state of the temperature of the warehouse in which the beans were placed in Columbus. So far as appears from the evidence the frozen condition of the beans was not discovered until their arrival at Fort Benning, some distance from Columbus, to which point the beans were transported and carried by the plaintiffs after the plaintiffs had received them from the carrier. It appears from the testimony of Ray E. Bone, an employee of the plaintiffs, that “on the 16th day of November 1940, the morning the beans were received,” the weather was cold, and “very considerably below freezing.” This witness was testifying as to happenings in Columbus on that morning as respects the transportation of the beans to Fort Benning and their rejection by the quartermaster at Fort Benning on the ground that they were frozen.

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It is inferable that the witness was testifying as to the condition of the weather in Columbus and its vicinity on the morning the beans arrived and when they were transported by the plaintiffs to Fort Benning, and that on this morning the weather was considerably below freezing. There is no evidence whatsoever as to the manner in which the plaintiffs transported the beans from Columbus to Fort Benning, or what precautions, if any, the plaintiffs may have taken to protect the beans against freezing while being transported from Columbus to Fort Benning, or as to the period of time the beans were in transit from Columbus to Fort Benning. While it can not be held that this evidence demands the finding that the beans became frozen in transit from Columbus to Fort Benning, after they had been delivered to the plaintiffs by the defendant carrier, it suggests the possibility that the beans may have become frozen while in transit from Columbus to Fort Benning, and precludes any inference from the fact that the beans, after they had arrived at Fort Benning, were discovered to be frozen, that they were in such frozen condition when delivered to the plaintiffs by the defendant carrier.

Is there any evidence from which it could be inferred that the beans were in good condition and were not frozen when delivered to the carrier in Atlanta, and that they became frozen while being transported by the carrier to Columbus, after delivery to the carrier for transportation to Columbus? The only evidence whatsoever that could be relied on as affording any such inference is that, after the beans were picked up by the carrier in Atlanta at about 7:30 or 8 o’clock p. m., on November 15, by one of its pickup trucks, and brought to the defendant’s warehouse about 8:30 and placed in the warehouse, and shortly afterwards loaded into one of the defendant’s trucks for transportation to Columbus, the truck in which the beans were to be transferred for shipment to Columbus was backed up to one of the large doors opening into the defendant’s warehouse, and the beans placed in the truck towards the front end, and that the doors of the truck remained open while the loading of the truck was in progress, and “the loading continued for some time;” that after the loading was completed the doors of the truck were closed; that the truck left for Columbus between 2 and 3 a. m.; that when the beans were picked up in Atlanta the temperature was already below freezing there, and that

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at 6:30 p. m. the temperature was 28 degrees. While it may be inferable from the testimony of L. A. Warnock of the Warnock Fruit Company, who handled the procurement of the beans and their delivery to the defendant carrier, that they were in good condition and were not frozen when they were delivered to the pick-up truck of the defendant carrier about 7:30 o’clock on the afternoon of November 15, 1940, it does not appear that after the beans were delivered to the pick-up truck of the defendant and placed in the defendant’s warehouse, from which they were within a short time transferred to the defendant’s truck for transportation to Columbus, where they were placed in the front end of the truck, they were exposed to the freezing temperature of the open air other than during the period when they were transferred from the pick-up truck to the defendant’s warehouse, and afterwards transferred from the warehouse to the truck which was to transport them to Columbus. It does not appear for what period of time the beans may have been exposed to the open air in the freezing temperature when being transferred from the pick-up truck to the warehouse and from the warehouse to the truck. While it appears that the doors of the truck to which the beans were transferred from the defendant’s warehouse for transportation to Columbus remained open while the truck was backed up to one of the doors opening into the defendant’s warehouse, and that “the loading continued for some time,” it appears undisputed that the beans were placed in the front end of the truck; that when the loading was completed the doors of the truck were closed, it does not appear that the beans were exposed for any appreciable time which would cause them to freeze after leaving the defendant’s warehouse and being stored in the defendant’s truck for transportation to Columbus. This evidence is not sufficient to authorize a finding that the beans became frozen after they were delivered to the defendant’s pick-up truck and placed in the truck for transportation to Columbus and before they reached Fort Benning.

The acceptance and receipt of the beans from the plaintiffs by the defendant in Columbus, and the sale of the beans afterwards by the defendant in Atlanta, does not tend to show an admission by the defendant that the beans were frozen or damaged while in its possession and before delivery to the plaintiffs in Columbus. So far as it appears from the evidence the beans were sold by the

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defendant pursuant to the terms of the shipping contract which authorized the sale of freight for the purpose of salvage. It does not appear that such right in the defendant to sell freight for salvage applies only to freight that is damaged in transit.

The evidence is not sufficient to show that the beans became frozen while in the possession of the defendant carrier after their delivery to the carrier in Atlanta for transportation to Columbus and before their delivery to the plaintiffs in Columbus. The finding of the judge of the municipal court for the plaintiffs was unauthorized, and the judge of the superior court erred in failing to sustain the defendant’s certiorari.

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

ON MOTION FOR REHEARING.
STEPHENS, P. J.

Counsel for the movant insist that this court has gone beyond the contentions of the plaintiff in error and decided the case on a question not insisted on by the plaintiff in error and not authorized by the assignments of error in the bill of exceptions. We decided the case on the ground that the evidence is insufficient to authorize a verdict for the plaintiff. The defendant, in its motion for new trial, among the general grounds, assigned error on the judgment of the trial judge, acting as a trior of the facts, on the ground that it was without evidence to support it. The defendant, as petitioner in certiorari, assigned error on the overruling of the motion for new trial on the ground that the judgment of the trial judge was without evidence to support it. The defendant, who is plaintiff in error in this court, assigns error on the judgment of the judge of the superior court overruling the certiorari on the ground that this judgment was error, and specifically on the ground that it was error because “the judgment” was without evidence to support it. The defendant, as plaintiff in error in this court, in its brief, expressly relied on the ground that the verdict of the trial judge was without evidence to support it, and specifically contends that it does not appear from the evidence that the beans were frozen while in transit, but suggests that they could have become frozen after having been received from the express company in Columbus and while being transported to Fort Benning. While the plaintiff in error does, in all the assignments of error in the motion for new trial, in the petition for certiorari, and in the bill of exceptions, specifically assign error on the ground

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that the cause of the freezing of the beans was by a so-called act of God, the plaintiff in error also assigns error as appears above, on the ground that the judgment of the trial judge was without evidence to support it, and relies on such ground in his brief.

There is therefore no merit in the motion for rehearing.

Rehearing denied. Sutton and Felton, JJ., concur.