Atlanta & West Point Railroad v. Broome , 3 Ga. App. 641 ( 1908 )

Powell, J.

1. Broome sued the railway company for shortages in several shipments of coal. The original petition, which was in one count, contained the allegations necessary to hold the carrier under the statute making the last connecting carrier that receives the shipment “as in good order” liable for the damages, and also the allegations necessary to hold it on the theory of a common-law liability for a loss of the goods while in its possession; indeed the pleader expressly declared the defendant to be liable both by the statute and the common law. Upon special demurrer being filed, the plaintiff, by an amendment, declared that “the .coal alleged to have been lost or stolen was delivered to the defendant, and was lost or stolen while in transit over defendant’s road, and not while in the possession of any other road over which it was shipped.” As the Supreme Court said in the case of Central Ry. Co. v. Banks, 128 Ga. 785, “A petition containing allegations appropriate to an action seeking to enforce a liability against a railway company as a carrier of freight under the statute, as well as allegations appropriate to an action seeking to enforce against the company a common-law liability, and which are sufficient to set forth a complete cause of action under either the statute or the common law, is bad for duplicity, and, upon special demurrer attacking the petition upon that ground, the plaintiff would be put to his election.” By the amendment set out above, the plaintiff elected to proceed upon the common-law liability; for the allegations of the amendment are inconsistent with an action under the statute. Upon this election being made, the court did not err in overruling the demurrer.

2. The shipments of coal were made partly from Tennessee •and partly from Alabama. The defendant pleaded, that the parties had made contracts, valid under the laws of those States, whereby it was agreed that none of the carriers handling the goods were to be liable for loss if they were shipped in open cars; also that under the laws of those States, upon the production of such a contract, the burden was upon the plaintiff to show the carrier’s negligence. So far as the defendant is concerned, its contract was to be performed in this State. “A contract of carriage, though made in a foreign State, is not necessarily governed in matters •of construction and effect by the laws of that State, where the contract is to be partly performed in this State. This is especially true as to requirements to he performed wholly in this State.” Carter v. So. Ry. Co., 2 Ga. App. 254 (59 S. E. 209). Even if we could agree with counsel for the plaintiff in error that under the laws of Tennessee and Alabama common carriers may contract •against their own negligence, the courts of Georgia would not' enforce such contracts, for the reason that the public policy of this State would thereby he violated. Contracts which contravene the policy of our law, though valid at the place where made, will not be enforced by the courts of this State. Civil Code, §3655; Eubanks v. Banks, 34 Ga. 408, 414; Benton v. Singleton, 114 Ga. 548, 556. Especially is this true where the conflict arises not by reason of a statute of the sister State, but by reason of the fact that the courts of that State have construed the common law differently from what our courts have construed it to be. Pattillo v. Alexander, 105 Ga. 482; Akers v. Jefferson Bank, 120 Ga. 1066. At common law carriers could not contract against their .own negligence. Berry v. Cooper, 28 Ga. 543. In this State such contracts are held to be contrary to public policy. So. Ex. Co. v. Purcell, 37 Ga. 103, 111; Atlantic Coast Line R. Co. v. Goodwin, 1 Ga. App. 351 (2).

3. In order for a carrier to avail himself of an exception under .a special contract, he must show that the loss comes within the •exception, and that his own negligence did not contribute thereto. Civil'Code, §2265; So. Ry. Co. v. Montag, 1 Ga. App. 649, and •cit. This is a rule of evidence. As to all matters affecting the remedy, including the evidence, and therefore the burden of proof, the laws of the forum govern, even as to suits on contracts made or torts committed in other States. Richmond & D. R. Co. v. Mitchell, 92 Ga. 77, 80; Massachusetts Life Asso. v. Robinson, 104 Ga. 256 (8), 286. The rule announced by the Supreme Court of Tennessee in the case of Nashville, C. & St. L. R. Co. v. Stone, 79 S. W. 1031, that “when a shipment by a common carrier is under a limited liability contract, and a loss falls within one of the excepted classes, the burden is on the shipper to show negligence,” being contrary to the rule in this State, is therefore of no applicability.

4. Where the shipment reaches destination and is there found short or damaged, in the absence of evidence showing that all or some part of the loss occurred on some other line, there is a presumption that the shortage or damage arose while the shipment was in the possession of the last carrier. C., N. & T. P. R. Co. v. Pless, 3 Ga. App. 400 (60 S. E.); Ohlen v. A. & W. P. R. Co., 2 Ga. App. 323 (58 S. E. 511).

5. In the case at bar, the plaintiff showed, that he delivered the ears of coal to the initial carrier, that the defendant carrier received these cars, collected the freight for the full amount shipped, and effectuated delivery to the consignee, but that when delivered the coal was short to the amount sued for. Contracts limiting the liability of each carrier to losses occurring on its own line, and purporting to exempt every carrier from all loss if the goods were'shipped in open cars, were in evidence. The defendant made no further showing. The plaintiff was entitled to recover. Judgment affirmed.