Opinion
34538.
DECIDED MARCH 13, 1953.
Damages; from Wrightsville City Court — Judge Brinson. December 30, 1952.
J. W. Claxton, for plaintiff in error.
E. L. Rowland, contra.
Where the evidence failed to show that the goods were delivered to the carrier by the consignor in good condition or at least in better condition than when delivered to the plaintiff consignee, a verdict in favor of the plaintiff consignee was not authorized and was contrary to law.
DECIDED MARCH 13, 1953.
L. E. Parker Fish Company brought suit in the City Court of Wrightsville against Railway Express Agency Inc., to recover $407.79. It was alleged that on May 12, 1951, the plaintiff received a certain number of boxes of fish, which had been shipped to the plaintiff by Smart Fisheries, Kingston, Ontario, Canada, through the defendant, and the plaintiff set up that it was the duty of the defendant to keep the fish properly iced in transit, and that the defendant had negligently failed to do this, resulting in the spoiling of the fish. The plaintiff alleged that payment had been demanded, and the defendant refused to pay the claim. The defendant answered, admitting the shipment of the fish by it, but denied liability to the plaintiff, alleging that, if the fish were spoiled, they were in that condition when delivered to it in Canada. The case proceeded to trial before a jury.
L. E. Parker testified that he was the owner of L. E. Parker Fish Company, and that when he received these fish they were in a rotten condition and wholly unfit for use; and that he could not state as to the condition of the fish at the time they were delivered by the shipper to the defendant or that they were in better condition then than when received by the plaintiff. J. E. Parker, agent for the defendant, testified for the plaintiff that the fish were rotten when they were delivered to the plaintiff; that he inspected the fish, and that they did not appear to have been properly iced en route. He further testified that he could not testify as to the condition of the fish when delivered to the defendant by the shipper in Canada, or that they were then in better condition than when they were delivered to the plaintiff in Wrightsville, Georgia, by the defendant.
The jury returned a verdict in favor of the plaintiff for $407.79. The defendant moved for a new trial, which was overruled, and the defendant excepts.
This was an interstate, and not an intrastate, shipment of fish, carried by the defendant express company, and no presumption of negligence existed as to the defendant carrier relative to the condition of the fish when delivered by it. The rights and liabilities of the parties depend upon the laws of Congress, and the bill of lading and the common-law rules as applied in the Federal courts. Cincinnati c. R. Co. v. Rankin, 241 U.S. 319 ( 36 Sup. Ct. 555). The carrier is liable if the goods are delivered to it in good condition and are delivered by it to the consignee in bad or damaged condition; and where the goods are received in bad condition, the plaintiff must show that the goods were received by and delivered to the carrier in good condition and delivered to the plaintiff in bad condition or that the goods were in better condition when received by the carrier for shipment than when delivered to the consignee. See Brown c. Co. v. Southern Ry. Co., 79 Ga. App. 449 ( 53 S.E.2d 702), and cit; Rome Electric Inc. v. Railway Express Agency, 81 Ga. App. 368 ( 59 S.E.2d 19), and cit. There was no evidence that these fish were delivered to the carrier in good condition or that they were in better condition when received by it than when delivered by it to the plaintiff. Consequently, the plaintiff failed to introduce evidence authorizing a recovery, and the verdict and judgment in its favor was without evidence to support it and contrary to law.
The testimony of the agent for the express company that he inspected the fish and they did not appear to have been properly iced en route is not sufficient to show that they were delivered to the carrier in good condition or that they were in better condition when received by the carrier than when delivered to the plaintiff.
It follows that the court erred in denying the defendant's motion for a new trial.
Judgment reversed. Townsend and Carlisle, JJ., concur.