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ERROR with cross bill of exceptions to exemplary damages, a verdict should not be

set aside unless it is grossly excessive.

review a judgment of the Circuit Court for Richmond County in favor of plaintiff in an action brought to recover damages for alleged violation of a statute against discrimination by railway carriers; defendant excepting to a refusal to grant a new trial after judgment against it; and plaintiff excepting to rulings made during the trial. Reversed on defendant's exception.

The facts are stated in the opinion. Messrs. Lawton & Cunningham and J. C. C. Black, for plaintiff in error:

A railroad company is not bound to ship beyond the terminus of its own line. If it does engage in such a contract, it is entirely a voluntary contract.

Atchison, T. & S. F. R. Co. v. Denver & N. O. R. Co. 110 U. S. 667, 28 L. ed. 291, 4 Sup. Ct. Rep. 185; Post v. Southern R. Co. 103 Tenn. 184, 55 L. R. A. 481, 52 S. W. 306; Little Rock & M. R. Co. v. St. Louis, I. M. & S. R. Co. 2 Inters. Com. Rep. 762, 41 Fed. 559; Chicago & A. R. Co. v. Pennsylvania Co. 1 Inters. Com. Rep. 360; Little Rock & M. R. Co. v. East Tennessee, V. & G. R. Co. 2 Inters. Com. Rep. 454; Capchart v. Louisville & N. R. Co. 3 Inters. Com. Rep. 278; New York, N. H. & H. R. Co. v. Platt, 7 Inters. Com. Rep. 324; Diamond Mills v. Boston & M. R. Co. 9 Inters. Com. Rep. 315; Railroad Commission v. Louisville & N. R. Co. 10 Inters. Com. Rep. 173; Kentucky & I. Bridge Co. v. Louisville & N. R. Co. 2 L. R. A. 289, 2 Inters. Com. Rep. 351, 37 Fed. 567; St. Louis Drayage Co. v. Louisville & N. R. Co. 5 Inters. Com. Rep. 137, 65 Fed. 39; Gulf, C. & S. F. R. Co. v. Miami S. S. Co. 30 C. C. A. 142, 52 U. S. App. 732, 86 Fed. 407; Coles v. Central R. & Bkg. Co. 86 Ga. 251, 12 S. E. 749; State v. Wrightsville & T. R. Co. 104 Ga. 437, 30

S. E. 891.

A common carrier is not bound to issue a bill of lading for the transportation of freight beyond its terminus.

Richmond & D. R. Co. v. Shomo, 90 Ga.

1. The gravamen of the brokerage company's complaint was that the railway company had, in violation of a rule promulgated by the railroad commission of this state, providing that carriers, "in the conduct of their intrastate business, shall afford to all persons equal facilities in the transportation and delivery of freight," wrongfully refused to place a car loaded with cotton seed on a side track in the rear of its warehouse, refused to allow reshipment of its cars at Augusta, and that the company's refusal so to do was in pursuance of a predetermined plan to drive the plaintiff out of the business of buying cotton seed at points along the railway company's line of road. As evidencing that such was the purpose of the railway company, the plaintiff alleged that it had also refused to issue through bills of lading from a station in Burke county to points beyond its line, notwithstanding the common practice of the railway company was to issue such bills of lading to other patrons. The evidence, howwhile issuing through bills of lading on ever, disclosed that the railway company, shipments of general merchandise, declined to do so on shipments of cotton seed, and in this respect there was no discrimination against the plaintiff. It further appeared that, although the plaintiff had asked that a through bill of lading on a shipment of cotton seed at the Burke county station should be issued to one of two points in Georgia beyond the railway company's line, the request was not made in good faith, and the plaintiff would not have accepted the bills of lading if the railway company had signified its willingness to issue them. The

Mr. William H. Fleming, for defend- trial judge nevertheless instructed the jury ant in error: that, should they believe the defendant comWhere the law requires a jury to give pany discriminated against the plaintiff as

500, 16 S. E. 220.

There cannot be any unjust discrimination against cotton seed as a commodity of traffic, unless the denial of the privilege to cotton seed gives some competitive traffic some advantage in the markets over cotton seed.

13 Cyc. Law & Proc. p. 105; Monongahela Nav. Co. v. United States, 148 U. S. 326, 37 L. ed. 468, 13 Sup. Ct. Rep. 622.

Cattle Raisers' Asso. v. Ft. Worth & D. C. R. Co. 7 Inters. Com. Rep. 513; Pennsylvania Millers' State Asso. v. Philadelphia & R. R. Co. 8 Inters. Com. Rep. 531; Railroad Commission v. Louisville & N. R. Co. 10 Inters. Com. Rep. 173.

Evans, J., delivered the opinion of the court:

When this case was before this court on a former occasion, it was held that the plaintiff's petition set forth a cause of action, and that the special demurrers urged against it were not well taken. 121 Ga. 48, 48 S. E. 714. A trial upon the merits was had in the court below, and resulted in a verdict for $3,005 in favor of the plaintiff. A motion for a new trial, presented in behalf of the defendant railway company, was overruled, and it excepted. By a cross bill of exceptions the plaintiff brings under review various rulings made during the progress of the trial which were adverse to it.

to issuing through bills of lading on intra- | the first place, it was optional with the railstate shipments, this would be a violation way company whether or not it would adopt of rule 36 of the railroad commission, and the custom of issuing any through bills of the plaintiff would be entitled to recover lading or delivering its cars at Augusta to such damages as resulted, and the jury connecting carriers in order that freight could visit upon the railway company ex- might, without reloading on cars furnished emplary damages if they found its refusal by them, be reshipped in bulk. Coles v. to issue to the plaintiff through bills of lad- Central R. & Bkg. Co. 86 Ga. 251, 12 S. E. ing was wilful. The court further instruct- 749. It could, without committing itself ed the jury as follows: "If it is the com- to any duty of so handling raw commodities, mon practice of a railroad company to al- issue through bills of lading, or afford such low reshipping privileges or through bills reshipping facilities to shippers of manuof lading for all classes of merchandise gen- factured articles or any other kind of freight erally, it cannot arbitrarily select any one it might choose to handle in that way. In class of merchandise, and refuse such privi- the absence of any duty imposed by law, it leges to dealers in that class of merchandise. could even arbitrarily so conduct its busiIn order to justify such discrimination, ness in this respect as to discriminate bethere would have to be differences in the tween cotton seed and grain, lumber, or circumstances and conditions of shipment." other products. Counsel for the railway These and other instructions of similar im- company very frankly concede that it had port are excepted to on the ground that they a "policy" which governed its decision in were not authorized either by the law or not issuing through bills of lading on shipthe evidence, and were highly prejudicial ments of cotton seed from points along its to the railway company. line, or allowing facilities at Augusta for The first of these instructions certainly the reshipment of that product in bulk over ought not to have been given. The plain-competing lines. This policy was doubtless tiff was not suing for damages resulting a purely selfish one, inasmuch as the rail. from the refusal of the railway company to way company looked to its own material issue a through bill of lading from the sta- business interests, rather than to those of tion in Burke county. The plaintiff could the plaintiff or other brokers engaged in not, in the city court of Richmond county, handling cotton seed. But the plaintiff also recover damages for a tort committed in had a "policy." It was not a philanthropic Burke county; and, moreover, had the plain- one. The situation may thus be summatiff sued in the latter county, no recovery rized: The oil mills at Augusta depended of damages because of such refusal would largely for a supply of cotton seed upon the have been authorized, for the evidence shows territory through which ran the defendant that the application for a through bill of railway company's line. They delivered to lading on an intrastate shipment was not it their manufactured products for shipment, bona fide. The plaintiff really wanted a so the railway company got a short haul through bill of lading to some South Caro- on the raw cotton seed, and also a long haul. lina point. Had the railway company issued on the reshipments made over its line of the through bills of lading to other shippers manufactured products. It was not to the of cotton seed at the Burke county station, business interests of the railway company but declined to accord like privileges to the that cotton seed grown at local stations on plaintiff, this fact would, as was held when its Augusta & Savannah branch should be this case was here before, afford competent shipped to oil mills located in South Caroevidence touching the alleged purpose of the lina, for none of the manufactured products railway company to break up the plaintiff's could then be secured for reshipment, at a business. However, the plaintiff failed to high rate, over its road. Its interests dicestablish any such unjust discrimination, tated that the cotton seed should stop at and therefore what occurred at that station Augusta, and be manufactured into oil and really had no bearing on the case, unless by-products by the mills located at that the court was right in the view of the law point. The railway company therefore deexpressed in the charge which we have above termined that it would not, by voluntarily quoted. granting facilities to shippers which it was under no legal duty to afford, supply the means of diverting from its road profitable shipments which it otherwise would receive. On the other hand, the material business interests of the brokerage company demanded that it should be granted such facilities. It was a free lance, in open competition with the oil mills at Augusta in the buying of cotton seed at the lowest price possible, and

The rule of the railroad commission alleged to have been violated prohibits discrimination against shippers, not against commodities. All shippers of á given commodity must be treated alike, but the carrier is not bound to have fixed and unvarying rules applicable alike to each and all kinds of freight, or to any given class of freight when shipped in car-load lots. In

What is said above disposes of a number of assignments of error made upon the charge of the court, and also of exceptions taken to the refusal of the court to give in

all the seed purchased by it was shipped | rier had granted the privilege sought by the from Augusta over the Southern Railway to brokerage company cannot affect the matter South Carolina mills. To reload shipments at all. The carrier could change its policy at Augusta for the South Carolina trip was at any time it saw fit, and the plaintiff had expensive. To get through bills of lading, timely notice of its intention to withdraw or to secure the consent of the defendant this privilege at the close of that season. company that its loaded cars be delivered to the Southern Railway at Augusta, so that the seed might be carried to its ultimate destination without reloading, would render the business of the brokerage company prof-charge pertinent requests which were in accord with the law as herein announced. The only contention of the plaintiff which the evidence tended to sustain was that the defendant had wrongfully refused to place a car loaded with cotton seed on the side track in the rear of plaintiff's warehouse, and that the purpose of the railway company in refusing to do so was to put the plaintiff to unnecessary expense in reloading at a different place, and thus discourage its engaging in the buying and shipping of cotton seed. There was proof of aggravating circumstances attending this discrimination against the plaintiff and in favor of the local oil mills, and the jury were warranted in reaching the conclusion that the conduct of the railway company was wilful, and in pursuance of a predetermined plan to throw every obstacle in the way of the plaintiff to prevent shipment of seed into South Carolina. But the case was not fairly or correctly presented to the jury, and a new trial must result.

itable, the business of the Augusta oil mills less remunerative. Their interests and those of the defendant railway company were coincident. Its interests and those of the brokerage company conflicted. The railway company acted as the average business man would have done; that is all. In de ning to grant the privileges which the brokerage company wished to enjoy, the railway company merely adopted a policy which was within its legal rights as a carrier. State v. Wrightsville & T. R. Co. 104 Ga. 437, 30 S. E. 891. That the brokerage company may have been the only broker in Augusta or elsewhere affected by this policy cannot alter the case. As a shipper, it was not discriminated against, though one of the commodities it handled was, incidentally. The railway company had the undoubted right to refuse to make through shipments of any freight, or to permit its cars to leave its line of road, however they might be loaded. To compel it to adopt a policy whereby no discrimination against a particular commodity, would result would not necessarily benefit the brokerage company, but might react to its disadvantage, and be inimical to the interests of shippers of other commodities, for it would then be within the power of the carrier to decline to deliver its cars for carriage over other lines under any circumstances. It may be that for this reason our railroad commission has not deemed it wise to attempt to prohibit any discrimination between different commodities belonging to a general class of freight.

If, as the evidence discloses, none of the patrons of the defendant company were granted the privilege, at Augusta, of having shipments of cotton seed in its cars turned over to connecting lines for transportation in bulk without reloading, then the plaintiff is not entitled to recover dam-structions are justly complained of as being ages because of the railway company's re- inapplicable to the facts of the case, and fusal to accord it this privilege, and the evi- therefore inappropriate and misleading. One dence bearing upon the "policy" of the car- was to the effect that, while it was no proprier in this regard was not competent for er business of a common carrier to facilithe purpose of sustaining the plaintiff's con- tate particular enterprises or to build up tention that the purpose of the defendant new industries, yet, as the carrier depended was to drive it out of business. Animus for its very existence upon the will of the cannot be inferred from what one does while people, it was bound to deal fairly with the acting strictly within his legal rights. That public, furnish reasonable transportation faduring the previous cotton season the car-cilities, and to put all of its patrons upon

At the request of plaintiff's counsel, the court informed the jury that, in a decision on one branch of this case, the supreme court had settled the law of it in favor of the plaintiff, holding that, if the plaintiff sustained by evidence the allegations of the declaration as to the conduct of the railway company with regard to intrastate business, the plaintiff would be entitled to recover. Complaint is made of this instruction on the ground that it was prejudicial to the defendant, in that it conveyed the impression to the jury that the supreme court had practically decided the case against the defendant, and it had no valid defense. Suffice it to say that the charge was at least irrelevant to any issue before the jury, and could serve no legitimate purpose in their determination of the case. Two other in

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an absolute equality. The other instruction for the further purpose of showing aggrawas as follows: "A railroad company can- vating circumstances. Upon the objection not discriminate in favor of a shipper who of the railway company that the plaintiff is able to furnish a large amount of freight had not alleged any of these matters of agover one engaged in the same business who gravation, the court excluded the evidence. is unable to furnish the same quantity; at The plaintiff also offered to prove by a witleast, where both ship in car-load lots." ness that about January 12, 1904, he had seen certain bills of lading covering shipments of cotton seed from Midville, Georgia, to Manning, South Carolina, issued by the defendant to Allan W. Jones, in whose name the shipments had been made, although the seed was the property of the brokerage company. On the ground that the bills of lading were the best evidence of what were their contents, this testimony was excluded. Plaintiff then attempted to prove by the same witness that these shipments came through Augusta, and witness knew of his own knowledge that the cotton seed was not there reshipped or transferred to other cars, and had duly reached Manning, South Carolina. Counsel stated that the purpose of this testimony was to show that through bills of lading must have been issued, for otherwise the shipments could not, without reshipment at Augusta, have reached Manning, South Carolina. The defendant objected to the introduction of this testimony, and the court excluded it on the

2. Another question presented for determination, both by the main bill and the cross bill of exceptions, is whether or not the court correctly interpreted and presented to the jury the meaning and effect of rule 36 of the railroad commission, in so far as interstate shipments were concerned. operation of that rule is, by its own terms, limited to intrastate shipments, and therefore cannot be held to apply to shipments originating in this state but destined for points beyond its borders. A bill of lading issued from a station in Georgia to one in South Carolina would evidence an interstate shipment, whether it was to be carried all the way by the initial carrier or was to be delivered by it at some intermediate point to a connecting carrier for transportation to ultimate destination. The ultimate destination of a shipment intended to take one continuous journey would determine its character in this respect. Facilities afforded for carrying through a cargo in bulk, without reloading at an inter-ground that it related to transactions which mediate point, would attach, according to took place after the filing of the suit. To the circumstances, to either interstate or to all of these rulings exception is taken in intrastate commerce. A failure to afford the cross bill. Each of them was, we think, equal facilities to all shippers engaged in correct. interstate commerce would not be a viola- "The assessment of damages is usually tion of rule 36. The instructions of the governed by the situation or condition of afcourt to this effect were correct, but might fairs existing at the time the action is properly have been more specifically applied brought." 13 Cyc. Law & Proc. p. 177. The to the facts by giving the request to charge general rule as to the recovery of special on this subject presented by counsel for the damages is, where they are not such as natrailway company. The plaintiff appears to urally flow from the wrongful act comhave been engaged altogether in making in-plained of, that "it is necessary, in order terstate shipments of cotton seed, no deliv- to prevent surprise to the defendant, that ery being made to the plaintiff in Augusta the declaration state specifically and in deexcept for the purpose of reloading on tail the damages sought to be recovered," Southern Railway cars, in order that the which involves making a statement of the seed might make one continuous journey facts upon which the plaintiff relies for a refrom Georgia into South Carolina. covery thereof. Id. p. 176. Where "a wilful wrong is committed, evidence of matters tending to aggravate the damages, when necessarily or legally arising from the act complained of, is admissible without special averment." Id. pp. 175, 176. But it is apparent that, where a plaintiff sues for a given wrongful act, and relies, as evidencing the motive with which that act was committed, upon another wholly independent act, done at a different time and place, the defendant should be advised by the plaintiff's pleadings of the case he is expected to meet. A case bearing directly upon this proposition is that of Leavitt v. Cutler, 37 Wis. 46, which was a suit for damages be

3. The plaintiff, in its petition, complained of a refusal by the railway company, on December 9, 1903, to deliver one car of the cotton seed on a side track in the rear of the plaintiff's warehouse, and for this alleged tort both actual and punitive damages were claimed. At the trial the plaintiff offered to prove that shortly before and shortly after that date the defendant refused to deliver other car-load lots of cotton seed on that side track; the evidence being of fered, counsel announced, for the purpose of proving plaintiff's contention that the defendant had a predetermined plan to drive plaintiff out of the cotton-seed business, and

cause of a breach of a contract of marriage. would attempt to prove, as an aggravating The court held: "In such an action the fact that plaintiff has been seduced by defendant by means of the alleged promise of marriage may be shown to enhance the damages, if it is alleged in the complaint, but not otherwise." See also Klopfer v. Bromme, 26 Wis. 372, 376. In the present case the defendant company could hardly have been expected to be prepared to meet charges that, after suit was commenced, it had committed certain specific acts which were wrongful, and which tended to prove that the acts complained of in the petition were wilfully committed; nor was the defendant put upon notice that the plaintiff

circumstance, that on given occasions prior to the commencement of the action the defendant had wrongfully refused to place on plaintiff's side track cars other than the one described by number in the petition. Had the plaintiff undertaken to amend its pleadings, the defendant could have claimed surprise. Certainly, the testimony offered was not admissible under the pleadings as they stood.

Judgment on main bill of exceptions re. versed; on cross bill affirmed.

All the Justices concur.

WEST VIRGINIA SUPREME COURT OF APPEALS.

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nated by dissolution of the corporation in consequence of its insolvency, the contractor is entitled to compensation for services rendered by him in pursuance of the contract until the date of its termination, and to reimbursement for his actual and necessary outlay and expenses as aforesaid, subject to a deduction of all sums paid to him by the corporation, and of the value of such materials, machinery, and other property on hand. 2. When such a contract between a corporation and one of its directors has been entered into openly and without fraud, and the disinterested directors and stockholders are fully informed of its terms, and permit it to be partly executed without disapproval or notice of an intention on their part to annul it, the same rule of compensation and reimbursement to the contractor applies upon the subsequent abrogation of the contract by a court o equity at the instance of the stockholders and creditors of the corporation.

3. When, in such case, large expendiX. Remedies.

a. Abstract, 151.

b. Concrete, 152.

XI. Construction and effect of statutes, 153 XII. Conclusion, 155.

I. Scope of note.

It is purposed, by this note, to display the cases wherein one who had a running contract with a corporation, which was in process of execution and required him to perform services and make outlays, was rendered unable to go on and complete his contract in consequence of the insolvency of the corporation, with its resulting dissolution.

To elucidate the subject, enough cases have been gathered to show what, as a general rule, constitutes a breach of such a contract, and is the measure of damages when a contract of this character is broken by the party requiring the services.

The effect of the death of one of the parties to such a contract upon its continuance is barely alluded to here and there, not treated. for the reason that this branch of the subject is sufficiently covered by two earlier notes in

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