Constitutionality.

- Former Civil Code 1910, §§ 2770 and 2778 (see O.C.G.A § 46-9-48) was constitutional. Southern Ry. v. Lowe, 139 Ga. 362, 77 S.E. 44 (1913).

Carrier's liability to shipper for overcharge.

- Independently of Ga. L. 1906, p. 102, § 2 (see O.C.G.A. § 46-9-48), carrier is liable to action by shipper for recovery of overcharge of freight which such shipper has paid, under protest, in order to obtain the shipper's goods and which the carrier refused to repay on demand. Southern Ry. v. Schlittler, 1 Ga. App. 20, 58 S.E. 59 (1907).

Verified claim must be filed for recovery of penalty.

- It was condition precedent to recovery of penalty under former Code 1933, § 18-319 (see O.C.G.A § 46-9-48) that verified claim be filed as provided, unless this requirement was waived by the carrier either expressly or impliedly. Southern Ry. v. Turner, 75 Ga. App. 219, 42 S.E.2d 790 (1947).

Waiver of contract notice provisions.

- Where a contract of shipment requires the owner or shipper to give notice in writing of any damage to the shipment before it is unloaded, such stipulation may be waived. If the carrier's agent, without objection to the form of the notice, receives and acts upon an oral notice, a waiver of the requirement as to its being in writing results. Southern Ry. v. Turner, 75 Ga. App. 219, 42 S.E.2d 790 (1947).

A stipulation that a claim for loss or damage shall be made in writing to the agent at the point of delivery promptly after delivery, and that, if such claim should be delayed for more than 30 days thereafter, no carrier acting under the bill of lading should be liable in any event, may be waived by the carrier. Southern Ry. v. Turner, 75 Ga. App. 219, 42 S.E.2d 790 (1947).

Waiver may be by conduct.

- A contract requiring notice in writing as a condition precedent to the recovery of damages for loss or injury to a shipment of livestock may be waived by the conduct of the carrier. Southern Ry. v. Turner, 75 Ga. App. 219, 42 S.E.2d 790 (1947).

Penalty and claim recoverable in same action.

- Although recovery of the penalty provided by former Civil Code 1910, §§ 2770 and 2778 (see O.C.G.A § 46-9-48) for failure of a carrier to adjust and pay a claim within the time limit was absolutely dependent upon the establishment of a right to recover the full amount of the claim itself, both the damages and the penalty were recoverable in the same action. Georgia F. & A. Ry. v. Anderson, 12 Ga. App. 117, 76 S.E. 1056 (1913).

Statute of limitations.

- A suit under Ga. L. 1906, p. 102, § 2 (see O.C.G.A. § 46-9-48) for the recovery of a penalty incurred by a railroad company by reason of its failure to refund an overpayment of freight was barred by former Civil Code 1895, § 3776 (see O.C.G.A § 9-3-28) when not brought within one year from the time the company's liability therefor was discovered. Central of Ga. Ry. v. Huson, 5 Ga. App. 529, 63 S.E. 597 (1909).

Since former Code 1933, § 18-319 (see O.C.G.A § 46-9-48) was penal in nature, no penalty was payable unless suit is brought within one year from the time carrier's liability was discovered or by reasonable diligence could have been discovered, as per former Code 1933, § 3-714 (see O.C.G.A § 9-3-28). City Express Serv., Inc. v. Rich's, Inc., 148 Ga. App. 123, 250 S.E.2d 867 (1978).

Pleading under section.

- Allegation that the payment was made under protest, and that the carrier refused to deliver the owner's property except upon the owner's paying the overcharge are unnecessary under Ga. L. 1906, p. 102, § 2 (see O.C.G.A. § 46-9-48). Southern Ry. v. Schlittler, 1 Ga. App. 20, 58 S.E. 59 (1907).

Cited in Stewart v. Comer, 100 Ga. 754, 28 S.E. 461 (1897); Southern Ry. v. Atlanta Stove Works, 128 Ga. 207, 57 S.E. 429 (1907); Southern Pac. Co. v. Crenshaw, 5 Ga. App. 675, 63 S.E. 865 (1909); Central of Ga. Ry. v. Butler Marble & Granite Co., 8 Ga. App. 1, 68 S.E. 775 (1910); Lumberman's Co. v. Seaboard Air-Line Ry., 37 Ga. App. 176, 139 S.E. 116 (1927); Seaboard Air Line Ry. v. Lumberman's Co., 168 Ga. 851, 149 S.E. 128 (1929); Atlantic C.L.R.R. v. Hogrefe, 43 Ga. App. 520, 159 S.E. 760 (1931); Railway Express Agency, Inc. v. Southern Gas Co., 83 Ga. App. 808, 65 S.E.2d 61 (1951).

ALR.

- Provision in carrier's contract requiring notice of damage or loss, as applicable to loss of market due to delay, 1 A.L.R. 538.

Carriers: sufficiency of compliance with stipulation requiring notice of claim for damages to shipment, 1 A.L.R. 900; 175 A.L.R. 1162.

Measure and elements of damages for loss or delay in delivering baggage of traveling salesman, 25 A.L.R. 76.

Carriers: amount of liability under second Cummins Amendment where value not declared, 25 A.L.R. 736.

Construction of provision of Interstate Commerce Act dispensing with notice or filing of claim, 44 A.L.R. 1360.

Wholesale or retail price as measure of damages against carrier for loss of goods, 50 A.L.R. 1467; 67 A.L.R. 1427.

Carrier's right or liability in respect of excess of lawful charge over charge understated where discrimination is forbidden, 83 A.L.R. 245.

Liability of carrier to punitive damages with respect to subject of interstate shipment, 107 A.L.R. 1446.

Joinder or representation of several claimants in action against carrier or utility to recover overcharge, 1 A.L.R.2d 160.

Recovery of cumulative statutory penalties, 71 A.L.R.2d 986.

Carrier's understatement of charges where discrimination is forbidden, 88 A.L.R.2d 1375.