Kight v. Wrightsville & Tennille Railroad 127 Ga. 204

Kight v. Wrightsville and Tennille Railroad Company.

1. When goods which have been received by a railroad company for transportation to a given station on its line of road, and delivery there to the consignee of the same, reach their destination and are there deposited by the company in its freight warehouse, for safe-keeping until delivered to such consignee, the general rule is that the responsibility of the company as a common carrier ceases and its liability as a warehouseman begins. Civil Code, §2279; Southwestern R. Co. v. Felder, 46 Ga. 433; Western & Atlantic R. Co. v. Camp, 53 Ga. 596; Almand v. Georgia Railroad Co., 95 Ga. 775; Georgia & Alabama Ry. v. Pound, 111 Ga. 6.

2. Nothing alleged in the petition in_ the present case takes it out of this general rule.

3. If, as alleged in the petition, the defendant railroad company, in accordance with its “universal and unbroken custom,” at the station to which it transported the goods, collected the freight charges from the plaintiff “on three of said shipments of freight, and then and there agreed to safely store and keep said freight in” its warehouse a.t that point “until such time as the same might be called for and receipted for by petitioner,” and under this arrangement “the defendant company had possession of all the” plaintiff’s goods embraced in such shipments “when the same were destroyed by fire” which consumed its warehouse, the duty which the company owed to the plaintiff, relatively to such goods, was that of a warehouseman, and. not that of a carrier.

4. Even if, under this allegation, the duty of the railroad company in respect to such goods was that of a warehouseman for hire, rather than *205that of a gratuitous bailee, it would not be liable in damages for the loss of such property, unless the loss was the result of its failure to exercise ordinary care and diligence for the protection of the same. Civil Code, §§2928, 2930.

5. Where in a suit to recover damages of the defendant, sustained by the plaintiff in consequence of the destruction of his goods by fire, while stored in defendant’s warehouse, a paragraph of the petition alleges that the destruction of such goods “was the result of the want of ordinary care and diligence on the part of the' defendant,” but does not allege how the defendant was negligent, a special demurrer to such paragraph, upon the ground that it fails to set forth any act of negligence on the part of the defendant which occasioned the destruction of plaintiff’s goods, is properly sustained, when no offer is made to cure, by amendment, the defect thus pointed out. The rule would be otherwise, under ' the Civil Code, §2930, if this were a suit against a warehouseman for hire, for failure, upon demand, to deliver goods which had been stored with him by the plaintiff.

6. With such paragraph stricken, the petition failed to set forth a cause of action; and therefore the general demurrer thereto was properly sustained.

Submitted July 18,

Decided December 20, 1906.

Action for damages. Before Judge Fairclotb. City court of Dublin. December 8, 1905.

W. 0. Davis and J. S. Adams, for plaintiff.

Daley & Bussey and Peyton L. Wade, for defendant.