Atlantic Coast Line R. Co. v. Benedict Pineapple Co.

• Decision Date: 04 December 1906
• Citation: 42 So. 529,52 Fla. 165
• Parties: ATLANTIC COAST LINE R. CO. v. BENEDICT PINEAPPLE CO.
• Court: Florida Supreme Court

42 So. 529

52 Fla. 165

ATLANTIC COAST LINE R. CO. v. BENEDICT PINEAPPLE CO.

Florida Supreme Court

December 4, 1906

In Banc. Error to Circuit Court, Orange County; Minor S. Jones Judge.

Action by the Benedict Pineapple Company against the Atlantic Coast Line Railroad Company. Judgment for plaintiff. Defendant brings error. Reversed.

Syllabus by the Court

SYLLABUS

A count in a declaration for damage to fruit by freezing, owing to the destruction by fire of its canvas covering, should allege facts to bring home to the defendant the knowledge that such result might be reasonably expected to follow directly and naturally from the burning.

To constitute actionable negligence in 'allowing' a burning by fire communicated from a locomotive, there must be alleged negligence in the communication or other circumstance that would cast a duty upon the railroad company to put out the fire.

COUNSEL Sparkman & Carter, for plaintiff in error.

Massey & Warlow, for defendant in error.

OPINION

COCKRELL J.

A judgment for near $7,000 was recovered by the pineapple company against the railroad company upon the theory of a negligent communication of sparks from a passing engine the recovery being obtained in large part upon the fourth count in the declaration, which reads as follows: 'And also for that the defendant is a railroad corporation operating a railroad through the city of Orlando, and on or about January 7, 1905, it carelessly and negligently allowed a pinery of the plaintiff, situated near the track of the defendant, to have its canvas covering, thereon placed to protect the pineapple plants and their fruit from cold, to be burned by means of fire communicated from or by means of its locomotive, and the said plants and their fruit were damaged by cold and frost soon thereafter for want of the canvas covering so negligently and carelessly burned by the defendant.'

A demurrer was interposed to this count upon three grounds: (1) It does not state a cause of action; (2) it is vague and indefinite; and (3) it shows the defendant's negligence was not the proximate cause of the plaintiff's damage.

If the allegation as to the burning of the canvas covering be considered simply as an inducement to the alleged damage by the cold, there are no facts set out sufficient to bring home to the defendant that such burning might reasonably have been expected to result directly and naturally in damage to the plants and fruit by cold and frost. It may be that in a more northern latitude this would be the natural proximate result from such burning in the month of January, but we cannot apply the same rule from any judicial knowledge of the climate in south Florida. For a definition of proximate cause, see Jacksonville, T. & K. W. Ry. Co. v. Peninsular Land, Transp. & Mfg. Co., 27 Fla. 1, 9 So. 661, 17 L. R. A. 33, 65.

On the other hand, if the proper construction of the declaration be that it claims damages for the destruction by fire of the canvas covering, and also for the loss by the cold by reason of such destruction, the count is fatally defective in not alleging negligence, either of commission or omission, on the part of the defendant in communicating the fire. Its carelessness and negligence is confined to the permissive or negative act of allowing the canvas covering to be burned, without any showing of a duty upon the defendant to put out a fire which was not caused by its carelessness or negligence. The last line of the count is not a positive allegation of negligence in causing the burning, but is merely descriptive of the canvas covering.

For these errors we think the demurrer to the fourth count should have been sustained.

The third count is subject to the latter criticism of the fourth and should be amended.

The judgment is reversed, with directions to sustain the demurrers as to the third and fourth counts.

TATLOR, HOCKER, WHITFIELD, and PARKHILL, JJ., concur.

CONCURRING

SHACKLEFORD C.J. (concurring).

I have achieved the distinction of preparing an opinion in this case in which my five associates have refused to concur. One would be justified in concluding, from this fact, that the opinion must be filed with erroneous conceptions of the law. This may be ture, for the combined judgment of the other members of the court is far more likely to be correct than my own, standing alone; yet, with the utmost respect for their views, I have still decided to file and publish my opinion. Several reasons induce me to do this: First, I am willing for the members of the bar to see how very bad the opinion really is; second, because it seems to me that the points involved merit a more extended treatment than they have received in the short opinion prepared by Mr. Justice COCKRELL, in which the other members of the court have concurred; and, third, because, as egotistical as it may appear, I have the conviction that I am right and am desirous of giving the reasons for the faith that is within me. I have devoted a great deal of time to and bestowed considerable labor upon the opinion, and am constrained to believe that it will be of service to the members of the bar, and that some of them will approve my attempt to grapple with and reason out to a conclusion the points raised.

In reply to the objection urged by some of my associates that my opinion contains disparaging reflections upon the ability of the respective counsel in the case, I wish to enter an emphatic denial. No such reflections can be found therein. It so happens that I have the honor of claiming as my personal friends every one of the counsel, and I have strangely misjudged them if they should find anything personal in the opinion, or should take offense at anything said therein. They are all busy practitioners, fast beating their 'pathway out to wealth and fame,' while my position requires me to pass judgment upon pleadings in cases in which they are questioned. Members of the bar frequently have to prepare their pleadings hurriedly, sometimes, as in the instant case, in the midst of a trial, while I have all the time I may desire in which to consider and announce my conclusions thereon. What I have said in my opinion of the declaration and demurrer was strictly in the discharge of my official duty. I have always been able to say, 'Tros Tyriusque mihi nullo discrimine agetur.' I have known neither friend nor stranger. It has never been a question with me, 'Who are the parties to the record?' or 'Who are the counsel engaged in the case?' but, 'What questions are presented for determination?' It is my province to deal with principles, not with individuals. Were it otherwise, I would indeed be recreant to my duty, and would deserve the sentence of condemnation passed upon the Crusader of old: 'His shield must be reversed; his name degraded.'

I have striven to 'walk in the light' of authority, reaching a conclusion by reasoning 'from precedent to precedent.' I may have signally failed to attain this high ideal, but I have at least made the effort. 'Mastering the lawless science of our law' is beyond the power of any man, and, let me frankly admit it, in searching 'that codeless myriad of precedent,' in groping my way through 'that wilderness of single instances,' oftentimes I have found the utmost difficulty in reaching a conclusion. I have a deepening conviction day by day of the great responsibility resting upon this court. Whether the question be one of life, liberty, or property, our decision is final, except in those very few cases which may be taken to the Supreme Court of the United States.

Asking the indulgence of the bar for these prefactory remarks, I now respectifully submit the opinion.

This is an action at law instituted by the defendant in error against the plaintiff in error in the circuit court for Orange county, in which a trial was had by a jury, and which resulted in a verdict for the defendant in error, herein styled the 'plaintiff,' in the sum of $7,684.20. A motion for a new trial was made by the plaintiff in error, herein styled the 'defendant,' upon various grounds, the fourth of which was that 'the verdict is excessive.' Upon this motion the trial court made an order to the effect that the plaintiff remit the sum of $750.97, in default of which the motion would stand on said ground. The plaintiff entered a remittitur in accordance with the order of the court, and final judgment was entered against the defendant in the sum of $6,928.23 damages and $22.18 costs. This judgment the defendant seeks to have reviewed here by writ of error, returnable to the present term.

The original declaration is as follows:

'The Benedict Pineapple Company, a corporation existing under the laws of the state of Florida, by Massey & Warlow, Esqrs., its attorneys, sues the Atlantic Coast Line Railroad Company, a corporation:

'For that the defendant is a railroad corporation operating a railroad through the city of Orlando, and on or about the 7th day of January, A. D. 1905, it so carelessly and negligently managed and operated one of its locomotives, while drawing a train through said city, in Orange county aforesaid, that fire escaped from said locomotive and set fire to a pinery belonging to the plaintiff and situated near to the track of the defendant.

'And also for that the defendant is a railroad corporation operating a railroad through the city of Orlando, and on or about January 7, 1905, it ran a train through said city, in Orange county aforesaid, drawn by a locomotive so carelessly and negligently equipped and provided with proper apparatus to prevent the escape of fire from said locomotive that fire did escape therefrom and set fire to the pinery belonging to plaintiff and situated near to the track of the defendant.

'And

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