
    STEWART, receiver, v. COMER et al., receivers.
    
      A written contract of affreightment stipulating that if the goods were loaded in a box-car the rate should be so much per hundred pounds actual weight, and if loaded on a flat car so much per hundred pounds for 10,000 pounds, the actual weight of the consignment being only 1,550 pounds, and the carrier having loaded a part of the goods in a box-car and part on a flat car, in a way to make the freight as an aggregate more than it would have been if the whole consignment had been loaded on either car: Held, that prima facie this was an overcharge, and in the absence of evidence on the part of the carrier showing why the goods were so loaded, the plaintiff, after paying the whole charge and complying with the terms of section 2316 of the Civil Code, was entitled to recover the amount of the overcharge, and in addition thereto the penalty prescribed by said act. Where a carrier has an option as to the mode of shipment, it is his duty to exercise it reasonably under the circumstances for the best interests of the consignee; and it is a breach of the contract to exercise it to his disadvantage, unless it is done in good faith and under circumstances which seem to require it.
    Argued January 8,
    Decided March 29, 1897.
    Action for overcharges. Before Judge Berry. City court of Atlanta. May term, 1896.
    This suit was brought by the consignee of a shipment of plate giass, against the terminal carrier, for the amount, of an alleged ©verdhlairge of freight, and flor the penalty provided by the act.of 1889. (Acts, p. 136.) The trial court granted a nonsuit, and plaintiff excepted. It appears, that in August, 1893, plaintiff ordered eight plates of glass from ¡New Tort, to be -shipped to Atlanta. They were shipped in two cases, one containing five plates, the other three. The hill of lading named as the rate, if loaded on "box-car, $1.14 per 100 pounds laietula! "weight; if lolaided on ■flat car, 73 cents per 100 pounds for 10,000 pounds. It •stated that the shipment was to be made by a steamship •designated. The defendant carried the shipment hy rail .-from Savannah to Atlanta, the case containing five plates in n box-ciar and 'that containing the three plates upon a ■flat car, and charged freight accordingly, the bill for the five plates being $14.31, and the bill for the three plate •ease being $73.00.
    Plaintiff testified: They overcharged ns on the glass, .and they told us to make a claim for the difference, and they would pay it in a few days. I paid the freight as ■requested, and it was never paid hack to me. The agreement I had about a special rate was made with the shippers in Hew York. I did n'olt see the car in which the five plates were shipped, because that was unloaded and put into the depot; but I saw the other car and the glass on ■it. The plates on that, the flat car, were 100 by 118 inches :in size. The ralbe of $1.14 on freight loaded in a box-car from Hew York to this place was the rate we got the .glass at. It was the legal and customary rate at that time. I never had any agreement or contract with-these people to ship freight in violation of the laws, in order to evade the statute; n.or did I ever authorize the shippers or anybody else to make a domtrlaidt .that wlas a violation of the la.w, :for the purpose lof wiaiding the statute.
    Another witness testified: I know about this shipment ■of glass. I saw the shipment that came in the flat car. The largest size in the box-car was 100 by 118 inches. 'There were three lights of glass in the box, the largest size being 100 by 118. All these eight plates could have ■come on one car. One of the defendant railroad’s men .and I went out and measured, and we decided that it could easily he put in a box-car. The dimensions of freight-cars -differ; some are 124 and some 123 1-3 inches. The larger glass was 100 inches. I measured this car. It was 123 inches.. I do molt know that iflhns wias the car ¡the glass came in. The-car Was ■in itihe yard. "Wie went in tibe yard to see if the glass i ■could come 'in 'that oar. TihaJt -was about 'the usual ¡height of " those doors. Mr. Wood, depot agent of the defendant rail- • road, and I went over, and we measured several. The glass-could easily have gotten in a box-car. The eastern and. western cars are so large, they conld have gotten in without any trouble. Wood and I agreed it conld come in a. ■box-oar. It was ia little -box-car .that we measured. I do-mot know that it was a car of the defendant, nor anything about the idimensions of defendant's freight-ears.. I ¡am mloit mistaken abbot my cionversaltiom With Wood. I. aim satisfied I am right. The frame we measured Was-about, I cannot say positively, 103 inches. The whole■thiing, box and all, was 103 inches, ¡after the glass was. packed and 'the cover put on. I went and saw 'the car-with Wood. I suppose it was a freight. It was in his-yard. We went over the matter particularly, to get it-adjusted. He said, at the time, he did not see why it could, not be put in a box-car.
    Plaintiff in'tibidu'ced, in addition to -the bill 'of lading- and bills for freight charges, the formal written claim made by Mm upon the defendant, etc. It appears, by recital in the bill of exceptions, that the nonsuit was granted upon the sole ground, that there was not enough evidence-to prove that the defendant had a box-car with a door of sufficient capacity to have received the cases of glass.
    
      Goodwin \& Wesénwnelaivd and 'Charles Z. Blalock, for-plaintiff. Dorsey, Brewster & Howell and Hugh M.. Dorsey, for defendants.
   Simmons, Chief Justice.

In fissMng 'the 'Mil ¡of lading -.the carrier reserved an option as to the mode of sMpment, and the price was to-be canbrlolled by ftthie method (of 'shipment (adopted. If the plate glass was shipped in a box-car, the price for the ■freight was to be $1.14 per hundred pounds actual weight; .if shipped upon a flat car, the rate was to be 73 cents per .hundred pounds for 10,000 pounds. Three plates of the glass were shipped ion 'a flait ‘car, for which, .'the darrier •charged $73.00; and five plates were shipped in a box-car, for which, tlb'e carrier ichlarged $14.31. It was mot ciom- ■ template! in this contract of affreightment that the glass ¡should be divided and part shipped in a box-car and part •on a flat car. We think that the contract means that the •eight plates of glass should all be shipped by one method ■either in a box-car or on a flat car.

The weight of 'the eight plalbes of glass 'appears to have been 1,550 pounds. If all of them had been shipped in a box-car, the freight would have been $17.67; if all had been shipped on a flat car, the freight would have been $73.00. The carrier charged $87.3Í for the two shipments. This, without explanation on the part of the carrier, is an overcharge according to the contract. Section .'2316 of the Civil Code provides, in subábamce, 'that where .any common carrier shall demand and receive, for goods shipped from within or without this State to any point ir. this State, any overcharge or excess of freight over and beyond ¡the proper or oomtnadt ralbe of freight, and a. demand in writing for the return or repayment of such overcharge is made by the person paying the same, the common carrier shall refund said overcharge within thirty ■days from said demand; and if it shall fail or refuse to do ¡so within thirty days, then it shall be liable to said person making the overpayment in an amount double the amount •of the overpayment. This being prima facie an overcharge, the plaintiff having paid it and given the written notice required, and the common carrier having failed to •refund it within the thirty days, the plaintiff was entitled under the code to recover it in an action brought for that purpose and also to recover the penalty imposed. It will, be observed ithlalt the penalty is not inflicted upon -the-common carrier for making the overcharge, but for its refusal to refund within thirty days after demand is made in writing. So it seems that where there is an overcharge of freight by a common carrier and tbe person to whom the-shipment is consigned pays it and makes demand in writing upon the carrier to refund such overcharge, and theeaiuñer fails (to do so within .tikkity 'days, ias la matter of law such common 'carrieir is liable both for the overcharge and.' the penalty.

It is contended that the common carrier, having reserved to itself in the contract an option like the one in the-present case, has the right to exercise its option to advance-its own interest and not the interest of the shipper, and. that inasmuch as this option was to ship the glass in either kind of car, it could divide the shipment as it did, if it was-to its interest to do so. The rule, however, seems to be the-contrary of this. It is laid down in Hutchinson on Carriers, section 313a, -ais follows: “Where a ooii'toaiet foir the* transportation of goods gives the carrier an option between* modes of transportation, this option must be exercised with-regard for -tbe interests of '(the shipper; -and it is a breach of’ the contract to exercise it to his disadvantage, unless it is* done in good faith and under circumstances which seem to-* demand it.” See also Blitz v. Union Steamboat Co., 51 Mich. 558; s. c. 17 N. W. R. 55, decision by Judge Cooley.. We -think therefore 'tlhlalt where -a carrier has an option*: of -this land, he amust exercise it reasonably, under the* circumstances, to the beet intereabs of -the «consignee or* shipper; and it would be a breach of contract to exercise-it to -the diisaidvanltage of Itthe consignee ox shipper, unless-, it be done in good faith and under circumstances which-seem to require it. We think also that the burden is upon* the carrier to show that it did exercise the option reasonably under the circumstances. If the carrier adopts a mode-of transportation which involves the payment of a higher rate of freight rather than a lower, it may show that it asked for and obtained direction from the shipper or consignee to employ the more expensive mode; or that, because of its inability to procure the means of shipment by the cheaper method, it was reasonably necessary, in view of the exigencies of the particular case and in order to complete the contract of carriage, to resort to the other and more expensive mode; or it may show other facts and circumstances which would justify it in exercising its option in a manner disadvantageous to the shipper or consignee.

Judgment reversed.

All the Justices concurring.  