Atlantic Coast Line R. Co. v. Sandlin

• Court: Florida Supreme Court
• Writing for the Court: WEST, J.
• Citation: Atlantic Coast Line R. Co. v. Sandlin, 75 Fla. 539, 78 So. 667 (Fla. 1918)
• Decision Date: 13 April 1918
• Parties: ATLANTIC COAST LINE R. CO. v. SANDLIN.

78 So. 667

75 Fla. 539

ATLANTIC COAST LINE R. CO. v. SANDLIN.

Florida Supreme Court

April 13, 1918

Error to Circuit Court, Hamilton County; Cary A. Hardee, Referee.

Action by P. H. Sandlin against Atlantic Coast Line Railroad Company. From a final judgment on the referee's finding in favor of plaintiff, defendant brings error. Reversed and cause remanded.

Syllabus by the Court

SYLLABUS

There was no reversible error in sustaining a demurrer to a plea to a declaration where another plea, setting up the same matter of defense, was thereafter filed, and the case was tried upon the issue made by such plea.

The owner of personal property, which he has recently purchased who is familiar with its cost price, may testify as to the value of such property, since the cost of a thing is some evidence of its market value.

Where a cause is heard by a referee, upon a motion for a finding for the defendant at the close of the evidence for the plaintiff the referee is governed practically by the same rules that are applicable in a case of a demurrer to evidence or upon a motion for a directed verdict.

Where a referee to whom a case is referred for trial hears the witnesses and sees them as they testify, his findings of fact are entitled to the same weight as the verdict of a jury.

At common law common carriers are held to a very strict accountability for the loss and failure to deliver goods received by them for carriage. Such accountability is not founded on contract, but is imposed by law upon grounds of public policy for the protection of the shipper, and, in the absence of a binding contract otherwise fixing liability, a common carrier is, with certain exceptions, liable as an insurer to a shipper for losses of or injuries to goods being transported by such carrier.

In the absence of a valid contract on the subject, the relation of a carrier is not changed to that of warehouseman with respect to a shipment of goods transported by it until such shipment has reached its destination, and notice thereof has been given the consignee, and he has been afforded reasonable time thereafter in which to receive and remove such goods or reject them.

By the Carmack Amendment to the Interstate Commerce Act (Act of June 29, 1906, c. 3591, s 7, pars. 11, 12, 34 Stat. 584, 595 [U S. Comp. St. 1916, ss 8604a, 8604aa]), Congress has relieved carriers of interstate shipments from the liability of insurers, as it was at common law, and the liability imposed on such a carrier is limited, by this statute, to any loss injury, or damage caused by it, or by a succeeding carrier to whom the property may be delivered for carriage, and in such a case the loss alleged must be attributable to some breach of duty or default on the part of the carrier.

The specific effect of the Carmack Amendment was to supersede the special regulations and policies of particular states upon the subject of the carrier's liability to shippers for loss or damage to interstate shipments and the contracts of carriers with respect thereto.

COUNSEL John L. Doggett, of Jacksonville, and Russell L. Frink, of Jasper, for plaintiff in error.

S. S. Sandford, of Jasper, for defendant in error.

OPINION

WEST J.

This cause was, by agreement of counsel for the respective parties referred to a referee, with power to hear and determine the same, and he was, by order of reference, directed to make separate findings as to the law and the facts involved in said cause.

The first count of plaintiff's declaration, upon which there was a finding by the referee in favor of the plaintiff, is as follows:

'P. H. Sandlin, by his attorney, S. S. Sandford, sues the Atlantic Coast Line Railroad Company, a corporation legally authorized to transact business in the state of Florida, which said company has a duly authorized agent resident in Hamilton county, Florida, for that on October the 1st, A. D. 1911, the said defendant accepted for carriage and undertook to deliver a certain shipment of goods purchased by this plaintiff from Studebaker Harness Company, to the amount of one hundred and thirty-one dollars and forty-five cents ($131.45), which said shipment was accepted by said defendant from its connecting carriers from South Bend, Indiana; and said defendant company did transport over its line of road said shipment of goods to Jasper, Florida, for plaintiff, and although plaintiff has demanded delivery of said goods yet defendant has failed and refused to deliver said goods, to the damage of this plaintiff in the sum of five hundred dollars.'

To the declaration the defendant filed pleas of (1) not guilty; (2) that it never promised as alleged; (3) 'that it was provided, in and by the bill of lading under which the alleged shipment was accepted by this defendant for transportation, that this defendant should not, except in case of negligence, be liable for loss or damage to the alleged shipment by fire, and this defendant says that, while the alleged shipment was in its possession, to wit, in its depot and warehouse at Jasper, Fla., the same was destroyed by fire which destroyed this defendant's warehouse at said place; that said fire took place and consumed said warehouse and said shipment without the negligence of this defendant;' and (4) 'that the alleged shipment was accepted and transported under and by virtue of the terms of a bill of lading, issued at the point of shipment to the consignor, for the plaintiff, wherein and whereby it was provided that, after the lapse of forty-eight (48) hours, exclusive of legal holidays, after notice of the arrival of the property at destination duly sent or given to the consignee, the liability of this defendant should be that of warehouseman only; and the defendant further says that, upon the arrival of the alleged shipment at destination, notice was duly sent by mail, to the plaintiff consignee; that, after the lapse of more than forty-eight (48) hours after the sending of such notice, the alleged shipment was destroyed by fire, without the negligence of this defendant, while stored in its depot or warehouse at the alleged destination, by reason whereof this defendant is not liable.'

Demurrers to the two latter pleas were sustained by the referee, after which amended pleas were filed setting up the same matters of defense in somewhat more elaborate form.

Later the defendant filed an additional plea, in which it was averred, in substance, that the said shipment, composed of several items which were enumerated, was received by it at its station at Jasper; that a few days after its receipt defendant's agent personally notified plaintiff that said shipment was then in said depot, and pointed it out to him; that four or five days thereafter said shipment was destroyed by a fire, which consumed defendant's depot, without the negligence of this defendant, by reason whereof the defendant is not liable.

Upon the issues thus made a trial was had before the referee, resulting in the following finding:

'Whereupon the undersigned as referee, having considered the testimony submitted in the light of the pleadings therein, doth find:

'1st. That the plaintiff upon the first count of the amended declaration is entitled to a verdict in the sum of $131.45, together with interest at the legal rate of 8 per cent. from the date of the filing of the praecipe for summons ad respondendum, to wit, December 21, 1911.

'2d. It is further determined that the plaintiff is not entitled to a judgment on the second count of its declaration, wherein damages claimed by the plaintiff for the nondelivery to him of a shipment of galvanized corrugated iron.

'As a matter of law controlling the decision in this cause, the referee is of the opinion:

'1st. That the testimony shows that the defendant, as to the corrugated iron referred to in second count of the declaration, held the same as a warehouseman and not as an insurer. The testimony fails to discover any negligence on the part of the defendant which would render them liable as a warehouseman. Besides, recovery is not sought on this theory, as shown by the terms of the second count of the said declaration.

'2d. The referee is of the opinion that the defendant company is liable as an insurer in so far as the goods mentioned in the first count of the declaration are concerned. The defendant company did not by its testimony overcome the burden cast upon them by section 2847, General Statutes of Florida, and until, by a preponderance of evidence, the company has shown the giving of written notice to the shipper, they are liable as common carriers.'

Upon this finding final judgment was duly entered. To review this judgment this writ of error was taken.

A number of errors are assigned, but counsel for plaintiff in error in their brief group them under a few headings, and discuss the propositions which they regard as controlling. We shall consider the questions argued by counsel.

It is insisted in the first place that the demurrer to the original third plea to the declaration was erroneously sustained by the referee. This plea is set out in the foregoing statement. It may be that the referee erred in sustaining the demurrer to it, but, as we have seen, after this demurrer was sustained amended pleas were filed, setting up in somewhat more elaborate form the same matters of defense, and the defendant, in so far as the pleadings are concerned, had all the advantage and benefits to be derived from such defense. He therefore suffered no injury as a result of the alleged error of the referee. This being true, it is clear that this contention is not well founded. Florida R. Co. v Battle, 62 Fla. 181, 56 So. 690; Atlantic Coast Line R. Co. v. Coachman, 59 Fla. 130, 52 So. 377, 20 Ann. Cas. 1047; Gainesville & G....