Atlantic Coast Line R. Co. v. Baynard

• Decision Date: 31 October 1933
• Citation: 112 Fla. 544,151 So. 5
• Parties: ATLANTIC COAST LINE R. CO. v. BAYNARD.
• Court: Florida Supreme Court

151 So. 5

112 Fla. 544

ATLANTIC COAST LINE R. CO. v. BAYNARD.

Florida Supreme Court, Division A.

October 31, 1933

Rehearing Denied Nov. 27, 1933.

Error to Circuit Court, Polk County; H. C. Petteway, Judge.

Action by E. M. Baynard against the Atlantic Coast Line Railroad Company. Judgment for plaintiff, and defendant brings error.

Affirmed.

BROWN J., dissenting.

COUNSEL

T. P. Kelly, of Tampa, for plaintiff in error.

Oxford & Cutts, of Lakeland, for defendant in error.

OPINION

ELLIS Justice.

E. M Baynard undertook to ship by way of the Atlantic Coast Line Railroad two carloads of grapefruit to Curtis & Co. in Boston, Mass., and, prior to the 24th day of December, 1923 notified the railroad company to place for Baynard on the side track of the railroad, alongside the warehouse of Baynard, two cars for the shipment of the fruit. The railroad company placed one car promptly, but failed to place the second car until the night of December 24th, and at a time when it was not 'possible for the said fruit to be loaded and delivered in the car of defendant (railroad company) until the next day.' The car was loaded on the 25th day of December with 360 boxes of grapefruit, worth $1200 in Boston at the place of delivery. The fruit was not delivered by the railroad company and Baynard sustained a total loss of the value of the fruit.

Baynard brought an action against the company for damages for negligently failing to transport and deliver the shipment to the consignee and claimed a thousand dollars damages. There were three counts to the declaration. The second and third counts were held bad on demurrer. The first count alleges that the defendant company received the carload of grapefruit for transportation and issued to plaintiff its bill of lading for the shipment. The declaration, which is an amended declaration, alleges that the bill of lading is attached to the declaration and made a part of it. The transcript of the record does not contain a copy of the bill of lading nor does it show that it was attached to the declaration.

The parties went to trial on the plea of not guilty to the first count. A second plea was also interposed averring that the plaintiff and defendant were both amenable to and bound by rule XVII of the State Railroad Commission requiring a shipper desiring cars for freight carriage to make a written application for the cars stating therein the character of freight to be shipped, and, if the application specifies a 'future day' on which the shipper desires to make a shipment of fruit or vegetables, that two days' notice thereof shall be given; that the plaintiff failed to make the written application for the cars and did not give the two days' notice, but the plea avers that the car was furnished within two days, so that the defendant complied with its duty in that regard.

The plea denies that the defendant received the car of grapefruit for transportation on the morning of December 25th, but, on the other hand, when the carload of fruit was tendered for transportation, the plaintiff and defendant entered into a contract of shipment under the terms of which defendant limited its acceptance of the car of fruit for transportation to take effect in the morning of December 26th and not before; that between the time of the making of such agreement and the time when the 'contract specified the transit should begin,' the defendant was not in possession of the car as a common carrier, but if it had possession at all it was as a warehouseman; that prior to the hour prescribed by the contract for the commencement of the transit of the car its contents were damaged by fire, which was caused through nothing attributable to the defendant, on the contrary, the fire originated on the premises of the plaintiff, or premises under his control, and adjacent to the railroad tracks; that the fire spread and damaged the car and its contents; that due care was exercised by the defendant to protect the car and its contents from damage from the fire.

A demurrer to this plea was interposed by the plaintiff and the court entered an order that such portion of the plea as related to the rule XVII of the Railroad Commission was bad because the bill of lading attached to the declaration showed that the shipment was in interstate commerce; that that part of the plea setting up an agreement whereby the defendant held the shipment as a warehouseman was bad because it 'conflicts with the notation on the bill of lading itself.' The court also held 'that any defense which would be legally admissible under the said plea can be introduced under the defendant's first plea, that of not guilty.'

An additional plea to the first count of the declaration was then interposed in which 'the defendant reiterates all the allegations of fact set forth in the first plea.' That plea was 'not guilty,' and 'further says' that after the fire, the plaintiff abandoned the fruit and defendant, doing what it could to minimize the damage, sold the fruit for $150 and tendered the same to the plaintiff, but he refused it.

A replication was interposed to that plea that the sum tendered was too small for the damage resulting from the defendant's wrongful act; that the tender was not made good by paying the money into court; and the third was an argument that the plaintiff could not abandon the fruit because the defendant had taken it to transport it.

There was a verdict in favor of the plaintiff and the defendant took a writ of error to the judgment entered.

What issues were tried it is scarcely accurate to say that the pleadings disclose. The question here, however, is what material error has the plaintiff in error shown to exist in the record as disclosed by the transcript?

The duty is upon the plaintiff in error and its attorney to bring to the appellate court a correct transcript of the record in the trial court. Rodriguez v. State, 98 Fla. 1231, 125 So. 353.

Appellate courts indulge all reasonable presumptions in favor of the correctness of the judgment or decree appealed from. O'Steen v. State, 92 Fla. 1062, text 1074, 111 So. 725; State v. Cornelius, 100 Fla. 292, 129 So. 752, text 758; Walker v. State, 93 Fla. 1069, 113 So. 96.

The transcript of the record should affirmatively show the existence of error if the judgment is to be set aside on account of the alleged invalid proceedings. The burden of making the error to appear is upon the person who complains of the judgment. That rule rests in sound reason and orderly procedure. The appellate court should not be required to search the record for points that may be lurking in it but not duly and properly raised. Webster v. Fall, 266 U.S. 507, 45 S.Ct. 148, 69 L.Ed. 411; Stevens v. Tampa Electric Co., 81 Fla. 512, 88 So. 303.

Every doubt should be resolved in favor of the correctness of the ruling of the trial court and an appellate court in case of doubt should resolve such doubt in favor of the trial court. See Southern Home Ins. Co. v. Putnal, 57 Fla. 199, 49 So. 922; Sarasota Ice Co. v. Lyle & Co., 58 Fla. 517, 50 So. 993.

A statement made in the order of a trial court as to matter in pais will be presumed to be correct unless the...