19 S.E.2d 188
29239.Court of Appeals of Georgia.
DECIDED MARCH 12, 1942.
Where a car of tin cans and cartons is delivered to an initial carrier which routes the car either upon its own judgment or at the direction of the consignor, a delivering carrier, other than the initial carrier, is not liable to the consignee for delay due to the routing of the car, even if the agent of the delivering carrier knew of the purpose for which the cans were needed by the consignee, and of the delay which would be caused by the routing of the car as it was routed, and even agreed with the consignee to route it so as not to cause delay.
DECIDED MARCH 12, 1942.
Damages; from Haralson superior court — Judge Mundy. June 27, 1941.
Jeffers-Bonner Company, a partnership, sued H. D. Pollard as receiver of the Central of Georgia Railway Company for damages alleged to have been caused by the improper routing of a carload of cans to be used in canning perishable products, which routing resulted in delay. The petition alleged, in so far as is necessary for a decision of this case, that the plaintiff is engaged in the manufacturing and canning of corn, okra, and tomato soup in Haralson County, Georgia; that on September 11, 1939, plaintiff placed an order with the Continental Can Company of Jacksonville, Florida, for certain cans, tops, and cartons, which were to be shipped to plaintiff by the most direct rail route to Buchanan, Georgia, the defendant at the time having knowledge that plaintiff was in need of the shipment and the order being a hurry order; that plaintiff had previously made shipment of similar cans, etc., and
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defendant was fully aware of the need of the shipment, and it should have been routed by the defendant so that it could have reached the plaintiff on the afternoon or night of September 12, 1939; that instead of routing the shipment direct to the plaintiff, defendant routed it from Jacksonville over the Southern Railway to Ashburn, Georgia, thence by the Georgia Northern Railroad to Albany, Georgia, so that it could be picked up by its own line and carried to Buchanan; that if the car had been directly routed through Macon there would have been no delay, and plaintiff would not have been damaged as alleged in detail in the petition.
The defendant filed general and special demurrers to the petition. Plaintiff amended the petition by alleging that on August 15, 1939, plaintiff had shipped over the line of the defendant a shipment of similar cans with the notation on the bill of lading as follows: “these cans for perishable goods, consequential loss possible if delayed;” and that the agent of the defendant at Buchanan was fully aware of the shipment made on September 11, 1939, and the use to which plaintiff expected to make of the cans, and plaintiff instructed the defendant’s agent at Buchanan to route the September 11 shipment in the same way as that given the shipment of August 15, 1939, which was by A. C. L. from Jacksonville to Albany, thence by Central of Georgia to Buchanan; that instead of routing the shipment as directed, the Buchanan agent of the defendant permitted an agent of the Southern Railway Company to give the shipment a different routing, one via Southern to Ashburn, thence by Georgia Northern to Albany, etc.; that defendant was further negligent in carrying the shipment through and beyond Buchanan, to Cedartown, Georgia, and in not setting the shipment out at Buchanan, at which time plaintiff would have received the same and applied it to its canning purposes that afternoon and night, but due to the failure of defendant to stop the shipment at Buchanan on the evening of September 15, plaintiff did not receive it until the next day. Plaintiff amended further by alleging that defendant’s agent at Buchanan agreed to route the shipment as the August 15th shipment was routed. Plaintiff further amended by attaching to the petition a copy of the bill of lading stating that it was attached “for the purpose of showing in what manner the defendant carrier obtained possession of the goods described therein, and for that purpose only.” The copy of bill of lading
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stated: “Route G. S. F. Ashburn, Ga. Northern Albany, C. of Ga. . . Continental Can Co. Inc. Shipper. (Signed) G. H. White, G. S. F. RR.”
The defendant renewed its demurrers to the petition as amended. The demurrers were overruled and the defendant excepted.
Don B. Howe, Matthews, Owens Maddox, for plaintiff in error.
Price Edwards, contra.
FELTON, J.
The terms and provisions of the bill of lading became a part of the petition under the circumstances of this case, and were not limited to the purpose stated in the amendment attaching it. It will therefore not be necessary to pass on the overruling of that special demurrer the ground of which was that no copy of the bill of lading was attached to the petition. The bill of lading was signed by an agent of the G. S. F. R., and in the absence of allegations to the contrary it will be presumed that delivery of the car of cans, etc., was made by the consignor to the G. S. F. R. and that either the consignor or the G. S.
F. R. routed the car. In the circumstances, the defendant and its agent at Buchanan had no authority to direct the route of the car, and if there is any liability to plaintiff it is due by the consignor or the G. S. F. R., either or both. If the defendant had no authority to route the car, its knowledge of the use for the car and the likelihood of loss on account of delay would not and could not be material and bind the defendant. There is no allegation that any one delayed the shipment otherwise than by improper routing, except that defendant carried it to Cedartown and back to Buchanan. It was alleged that the car reached Buchanan on the evening of September 15. There is no allegation that the car reached Buchanan during the railroad office hours on the 15th, and it is not alleged what time on the 16th the car reached Buchanan. Besides, the allegation that the damage was increased by the Cedartown movement is inconsistent with the allegation that the long routing caused the damage, in that the car failed to reach Buchanan in time for use by the plaintiff of the cans on the morning of September 13. No cause of action was set out against the defendant, and the court erred in overruling the general demurrer to the petition.
Judgment reversed. Stephens, P. J., and Sutton, J., concur.
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