Atlantic Coast Line R. Co. v. Dexter

• Decision Date: 23 November 1905
• Citation: 50 Fla. 180,39 So. 634
• Parties: ATLANTIC COAST LINE R. CO. v. DEXTER et al.
• Court: Florida Supreme Court

39 So. 634

50 Fla. 180

ATLANTIC COAST LINE R. CO. v. DEXTER et al.

Florida Supreme Court, Division B.

November 23, 1905

Error to Circuit Court, Suwannee County; B. H. Palmer, Judge.

Action by H. F. Dexter and S. B. Conner against the Atlantic Coast Line Railroad Company. Judgment for plaintiffs, and defendant brings error. Reversed.

Syllabus by the Court

SYLLABUS

The fact of the delivery of freight to a common carrier for carriage may be proven by oral testimony, notwithstanding the existence of a receipt or bill of lading given by the carrier for such freight. Such receipt or bill of lading does not fall within the best-evidence rule as proof of such fact of delivery.

The settled rule in the United States is that an acceptance by a shipper or his agent of a receipt or bill of lading containing a limitation of the carrier's liability is binding on him when the limitation is not illegal or unreasonable; that it is not essential to the validity of such a limitation that it be shown that the shipper was aware of it, or that he had read it, or that it had been explained to him, or his attention called to it, provided the carrier made use of no improper means to prevent his noticing or objecting to it; and that every shipper is conclusively presumed, in such a case, to have read and assented to the provisions of the receipt or bill of lading given him whether he in fact assented or not, and he is estopped from gainsaying or repudiating it.

Where the shipper of live stock, or his agent, assumes to take care of the stock during its transportation, and it is found to be injured on arrival at its destination, that burden of proof under the Florida statute (chapter 4071, p. 113, Laws 1891) is upon the shipper plaintiff to prove at least that the injury to such stock was caused 'by the running of the locomotives, or cars, or other machinery of the defendant company,' before the burden shifts to the defendant carrier to show that the injury complained of was not the result of any negligence on its part.

Provisions in contracts for the carriage of live stock limiting the amount for which the carrier is to be liable in any event for the complete loss or injury to such stock while in its charge are universally recognized to be reasonable, valid, and binding on the parties.

A demurrer to evidence is properly overruled, unless it sets forth all of the evidence intended to be admitted thereby.

COUNSEL

John E. Hartridge and J. B. Johnson, for plaintiff in error.

The defendants in error, hereinafter referred to as the plaintiffs, sued the corporate plaintiff in error referred to hereafter as the defendant, in the circuit court of Suwannee county, in an action of trespass on the case, and recovered judgment for $235.13, and the defendant below brings the case here for review by writ of error. The declaration is as follows:

'And now comes the said plaintiffs, H. F. Dexter and S. B Conner, partners doing business under the style and firm name of Dexter & Conner, by Rees & Rees, their attorneys, and complains of the said defendant, the Atlantic Coast Line Railway Company, a railway corporation doing business in and under the laws of the state of Florida, which has been summoned to answer the plaintiffs, that on the 9th day of February, A. D. 1904, the plaintiffs delivered to the Central of Georgia Railway Company at Atlanta, Georgia, twenty-two mules and three horses in good condition, to be shipped to plaintiffs at Live Oak, Suwannee county, Florida, via the G. S. & F. [R'y] and A. C. L. [R'y], and the same were received by the said Central of Georgia Railway Company for transportation for the usual rates and charges for such shipments, and the said defendant then owned and operated a line of railway between Jasper, in Hamilton county, Florida, and Live Oak, in Suwannee county, Florida, and was then engaged in the business of a common carrier for hire and reward of both passengers and freights between said points last named, and did between the 9th and 13th of February, A. D. 1904, receive from the Georgia Southern & Florida Railway Company the said mules and horses for transportation to Live Oak, Florida, and delivery to plaintiffs, and it then became and was the duty of said defendant to, and it then undertook to, safely keep, transport, and deliver said horses and mules to the plaintiffs; but the defendant, its agents and servants, not regarding its duty as a common carrier, acted so carelessly and negligently in the operation of the cars in which said stock were being transported that by reason thereof one of said mules was bruised, crushed, wounded, injured, and hurt so that it died from such injury and was wholly lost to plaintiff, whereby plaintiff was injured and damaged to the sum of one hundred and fifty-seven dollars and fifty cents, the value of said mule, and the further sum of two dollars and sixty-three cents freight paid by plaintiff to defendant on said mule, to plaintiff's damage in the sum of three hundred dollars.

'And for that whereas, on or about the first of November, A. D. 1902, the plaintiff shipped from Morristown, Tennessee, over the Southern Railway, a car load of mules and horses, billed to Live Oak, Florida, and the said Southern Railway Company then received said car load of stock from plaintiff in good condition for transportation and shipment as a common carrier, and the said defendant was then and is yet the owner and operator of a line of railway between Savannah, Georgia, and Live Oak, Florida, and was engaged in the business of a common carrier of passengers and freight over its said line of railway for hire and reward, and did then receive at some point on its said line of railway unknown to plaintiffs said car load of horses and mules, then and there undertaking to safely keep and transport and deliver the same to plaintiff at Live Oak, Florida; but the defendant, its agents and servants, not regarding its duty as a common carrier, acted so carelessly and negligently in the operation of the car on which said stock were being transported that by reason thereof one of the mules composing said car load of horses and mules then and there the property of the plaintiffs were bruised, mashed, crushed, injured, and hurt, whereby plaintiffs suffered damage and loss in the value of said mule to the extent of seventy-five dollars. Wherefore plaintiffs sue and claim damage in the sum of three hundred dollars.'

To this declaration the defendant demurred. The court overruled the demurrer, but as the assignment of error predicated on this ruling is expressly abandoned here it is unnecessary to mention it further.

The defendant riled two pleas to the declaration as follows:

'(1) Not guilty.

'(2) The defendant says that the injuries complained of in the two counts in said declaration to have been sustained by the stock of plaintiff were caused solely by the inherent viciousness of the stock and animals being shipped by the plaintiffs, and not otherwise.'

Upon the issues thus made the trial was had.

OPINION

TAYLOR, J. (after stating the facts).

To H F. Dexter, one of the plaintiffs, as a witness on his own behalf, the following question was propounded: 'Did you, on or about the 9th day of February, 1904, deliver to the Central of Georgia Railroad Company a car load of horses and mules?' The defendant objected to this question on the ground that the written receipt or bill of lading for the stock is the best evidence of the delivery of same to the railroad company. The objection was overruled, and the question allowed, which ruling is the second error assigned. The witness answered that 'the Brady Union Stockyards delivered this car load for me. We usually had them to deliver the stock.' There was no error in permitting the question. The receipt or bill of lading, if any, given by the railroad company for freight delivered to it for carriage, while strong evidence, is no better evidence of the abstract fact of such delivery than the testimony of a credible witness who knows of such delivery. No receipt or bill of lading may...