Opinion
45920.
SUBMITTED JANUARY 8, 1971.
DECIDED JANUARY 27, 1971.
Action for damages. Fulton Civil Court. Before Judge Camp.
Carnes White, James A. White, Jr., for appellant.
Smith, Spears Sears, Virgil H. Smith, for appellee.
Where it appears from the evidence that the goods were received by the carrier in good order and arrived in a damaged condition, the same is sufficient to hold a common carrier liable for the damage to the goods moving in interstate commerce on a through bill of lading.
SUBMITTED JANUARY 8, 1971 — DECIDED JANUARY 27, 1971.
Robert E. Corry, Jr. (the appellee) sued Thurston Motor Lines, Inc. (the appellant) as a nonresident corporation and motor common carrier doing business in the State of Georgia, and North Georgia Express Company, a Georgia corporation and a motor common carrier doing business in the State of Georgia, for damages to furniture shipped to him from Rocky Mount, N.C., via Thurston Motor Lines, Inc., by Bullock Furniture Company, consigned to Robert E. Corry, Jr. in care of North Georgia Express Company in Atlanta. The shipment was received by Thurston Motor Lines, Inc., and delivered to the address of North Georgia Express Company in several cartons. The furniture was received by the plaintiff, Corry, in a damaged condition, and he refused to accept delivery of the cartons. A claim was made upon both Thurston and North Georgia, each of whom denied liability and refused to honor said claim.
The case proceeded to trial in the Civil Court of Fulton County without the intervention of a jury. After presentation of evidence, oral and documentary, and the denial of motions by both plaintiff and defendants respectively for directed verdicts, the court rendered judgment against the defendants for $750. The appeal is from this judgment.
The evidence is without conflict that the cartons were delivered by Thurston Motor Lines to North Georgia Express Company. There is evidence that North Georgia Express Company discovered one of the cartons damaged immediately after delivery, and notified Thurston Motor Lines of this fact. Thereafter, North Georgia Express Company delivered the cartons to Corry, where the furniture contained in the cartons was found to be broken and damaged.
Thurston Motor Lines contends that North Georgia Express Company was the consignee and its liability ended on delivery at the address of North Georgia Express Company, since the bill of lading was to "Robert E. Corry, Jr., c/o North Georgia Express Company." All of the parties contend that the case is controlled by the Carmack Amendment, 49 USCA § 20 (11). The pertinent part of this statute is: "Any common carrier ... subject to the provisions of this chapter receiving property for transportation ... to a point in another state ... shall issue a receipt or bill of lading therefor, and shall be liable to the lawful holder thereof for any loss, damage or injury ... to such property caused by it or by any common carrier ... to which such property may be delivered or over whose line or lines such property may pass..."
Thurston contends that North Georgia Express Company is not a participating carrier in this instance in the movement of goods with it, and that the evidence shows that it delivered the goods in good condition to North Georgia Express Company and is therefore not liable. However, the evidence is in conflict as to the condition of the goods when received by Corry and/or North Georgia Express Company. An employee for North Georgia Express Company states that one of the cartons was damaged when they were received by it. Upon delivery to Corry there is evidence that the furniture was damaged inside the cartons which could not be observed until unpacked. Since the trial court heard the evidence without the intervention of a jury, and there is evidence to support its finding, the court did not err in refusing to direct a verdict in favor of Thurston and in rendering judgment against it, there being evidence sufficient to support the same. An initial carrier may be held liable for loss or injury sustained. This is true whether or not North Georgia Express Company acted as a local delivering carrier as contemplated by the Carmack Amendment, or whether Thurston's liability ended on delivery to some person at the address of North Georgia Express Company. The evidence is sufficient to show that the damages were latent and only appeared when all of the cartons were opened. Proof that goods were received by the carrier in good condition and arrived in damaged condition casts the burden of proof upon the defendant carrier to establish an affirmative defense. Loo-Mac Freight Lines v. American Type Founders, 100 Ga. App. 203 ( 110 S.E.2d 566).
Judgment affirmed. Jordan, P. J., and Quillian, J., concur.