The Western and Atlantic Railroad Company vs. The Exposition Cotton Mills. which she alleges has been transferred to her since this case was before this court before. We think the court did right in sustaining the demurrer to these parts of the cross-bill. The widow is entitled to a year's support only out of the property of her deceased husband. Expenses of an administration must be paid out of the estate of the deceased. Although her husband died in possession of the land whereon he lived at the time of his death, simple possession does not give right to dower. The husband must be seized in his own right to the land and be possessed of same, to entitle her to dower. And as we have decided that B. P. Hill was not the owner of the land at his death, the widow is not entitled to dower, nor to the right to further occupancy of the mansion-house or premises. If the plaintiff in error is the transferee of the execution named in her cross-bill, she has a complete remedy at law. No special reason is given why equity should interfere in behalf of this execution, especially as she claims it was transferred to her since this litigation was commenced, and it is not germane to the litigation as it stood when she became the transferee. We think the court did right in sustaining the demurrer to the cross-bill as set out in the order, and in rendering the decree which is complained of. Since we affirm the judgment of the court below, there is no reason why we should pass on the motion to dismiss the bill of exceptions. Judgment affirmed. 81 522 103 597 105 373 81 522 115 364 81 522 124 325 ! 81 522 125 513 THE WESTERN AND ATLANTIC RAILROAD COMPANY vs. THE 1. Where machinery was shipped on a through bill of lading from Boston to Atlanta, and according to one of the stipulations therein, The Western and Atlantic Railroad Company 3. The Exposition Cotton Mills. the machinery was to be delivered to the Exposition Cotton Mills in Atlanta by the railroad receiving it, and the agents of such railroad mentioned in the bill of lading, one of which was the Western and Atlantic Railroad Company, made out its freight bill at Atlanta against said mills, and the freight charges were paid it by said mills, the fact that the cars containing the machinery were transported to the mills, from Atlanta, by the Georgia Pacific Railway Company, two miles and a quarter, would not make the latter, under a proper interpretation of the contract, the last road receiving the machinery. (a) Besides, it appears that the Georgia Pacific Railway Company received nothing for carrying these cars from the depot to the mills, but that the Western and Atlantic Railroad Company received the whole freight charges. 2. The declaration being against defendant as one of the connecting railroads of a continuous line, and alleging that it received certain machinery from another one of said railroads at Dalton, Georgia, and that it was negligently transported by defendant in open cars, so that it was exposed to rain and greatly injured; but there being no allegation that the goods were received by defendant as in "good order," the liability of the defendant under such declaration must be determined under the rules of the common law, and not under section 2084 of the code of Georgia. (a) Where a railroad company is sued for damage to goods in transit, and the section of the code cited is relied on for recovery, the defendant should be put on notice thereof. The proof to be made and the liability of the railroad are entirely different in the two actions. Under the code, the last road receiving the freight as in good order cannot relieve itself of liability by showing that the goods were damaged on other roads, while, if sued on its common law liability, it can relieve itself by showing that they were damaged on a connecting line before it received them. The presumption is against it, but it can rebut that presumption by proof. (b) So, under the action of common law, the defendant would be entitled to all the benefits and exceptions reserved in the contract made between the shipper and the first carrier who received the goods, where the contract is a through contract. 3. The contract in the bill of lading limited the liability of the carrier, providing that it should not be held liable for " any loss or damage arising from. fire from any cause, on land or water, . explosions, freshets, floods, weather, insufficiency of package in strength or otherwise, rust, dampness," etc. While such a contract would not be good in Georgia, it seems that, under the laws of Massachusetts, it is a good contract in that State. It having been made in the latter State, and being intended to be partly performed there and in several The Western and Atlantic Railroad Company vs. The Exposition Cotton Mills. other States, as well as in Georgia, the defendant can avail itself of it in this action. (a) Although the goods were shipped at the owner's risk and the carriers were not to be liable for damage caused by the weather or rust, still if the damage was caused by weather or rust by the negligence of the carrier, or because of unreasonable delay upon the road, the carrier guilty of the negligence would be liable. (b) If the shipper agreed that the machinery might be transported upon open cars, the carrier would not be liable for damages caused by its being so transported; but if ordinary diligence required the carrier to cover the cars during a detention on the road, and it failed to do so, it would be liable for damages resulting from such failure. November 5, 1888. Railroads. Connecting roads. Delivery. Pleadings. Contracts. Before Judge VAN EPPS. City court of Atlanta. December term, 1887. Reported in the decision. JULIUS L. BROWN, for plaintiff in error. ABBOTT & SMITH, contra. SIMMONS, Justice. The Exposition Cotton Mills, of Atlanta, Ga., sued the Western & Atlantic Railroad Company for damages upon the following state of facts: The plaintiff purchased from Riley & Co. certain cotton mill machinery, and made a contract with the Virginia, Tennessee and Georgia Air Line, to ship the machinery from Boston. and other places in the east to Atlanta, at a reduced rate of freight and at the "owner's risk." The different roads over which it was to be shipped were mentioned in the bill of lading, commencing with the New York and New England Railroad Co. and ending with the Western and Atlantic Railroad Company, the latter having its terminus in the city of Atlanta. A A por The Western and Atlantic Railroad Company vs. The Exposition Cotton Mills. tion of this machinery was shipped from Boston some time in September, and arrived in Atlanta some time in October, being over thirty days on the route. When this portion of the machinery arrived in Atlanta and was delivered to the Exposition Cotton Mills, it was found to be badly damaged by rust. The delivery at the mills was made by the Georgia Pacific Railroad Company, to which the Western and Atlantic Railroad Company had delivered the cars containing the machinery, at its depot in Atlanta, on the morning of the 20th of October, 1882, and it carried the cars thence to the mills, two miles and a quarter from the depot. The bill of freight for the machinery was made out against the Exposition Cotton Mills by the Western and Atlantic Railroad Company, and the freight charges paid to it by the Exposition Cotton Mills. The evidence further shows that when this particular lot of machinery was about to be shipped, application was made to the railroad company by Leigh & Co., shipping agents of Riley & Co., for cars in which to transport it; and Leigh & Co. were informed by the agent of the railroad company that he could only furnish flat-cars. These flat-cars were accepted by the shippers, and the machinery was loaded thereon and started south towards Atlanta. In one of the contracts for the shipment of the machinery, it was stipulated that the machinery, after it was first loaded, should not be changed to other cars, but should go through on the same cars to its destination. It was stipulated in the bill of lading, that the railroad company should not be held liable for "any loss or damage arising from the following causes, viz., fire from any cause, on land or water, . freshets, explosions, accidents to insufficiency of pack floods, weather, boilers and machinery, age in strength or otherwise, rust, dampness," etc. The Western and Atlantic Railroad Company vs. The Exposition Cotton Mills. On the trial of the case, the jury returned a verdict for the plaintiff. The defendant made a motion for a new trial, which was overruled by the court, and it excepted. The view we take of this case renders it unnecessary for us to discuss all of the forty-seven grounds of this motion. There are certain legal principles which control the case, and when they are discussed and decided, they will sufficiently determine the liability of the railroad company under this form of action. 1. It was contended by counsel for the plaintiff in error that the Western & Atlantic Railroad Company was not the last road receiving the machinery, and therefore was not liable, because it delivered the cars containing the machinery to the Georgia Pacific Railroad Company. The court below, however, instructed the jury that under the contracts of shipment, the Western & Atlantic Railroad Company was the last road. We do not see any error in this charge. This was a through bill of lading from Boston to Atlanța, and according to one of the stipulations therein, the machinery was to be delivered to the Exposition Cotton Mills in Atlanta by it and its agents, the railroads mentioned therein. The Western & Atlantic Railroad Company was one of the roads mentioned, and made out its freight bill against the Exposition Cotton Mills, and the freight charges were paid to it by the Exposition Cotton Mills. The simple fact that the Western & Atlantic Railroad Company pushed these cars from its track to the track of the Georgia Pacific railroad in Atlanta, and the latter carried the cars two miles and a quarter to the mills, could not make the latter, under this contract, the last road receiving the machinery, under a proper construction of the contract. The bill of lading upon which this machinery was shipped, stipulated that the |