Atlantic Coast Line R. Co. v. Wilson & Toomer Fertilizer Co.

• Decision Date: 02 March 1925
• Parties: ATLANTIC COAST LINE R. CO. v. WILSON & TOOMER FERTILIZER CO.
• Court: Florida Supreme Court

104 So. 593

89 Fla. 224

ATLANTIC COAST LINE R. CO. v. WILSON & TOOMER FERTILIZER CO.

Florida Supreme Court, Division B.

March 2, 1925

Rehearing Denied June 23, 1925.

Error to Circuit Court, Duval County; De Witt T. Gray, Judge.

Action by the Wilson & Toomer Fertilizer Company against the Atlantic Coast Line Railroad Company. Judgment for plaintiff and defendant brings error.

Reversed for new trial.

Browne J., dissenting.

Syllabus by the Court

SYLLABUS

Common carrier of goods is insurer against all risks of loss except those resulting from act of God, without intervention of human agency. A common carrier of goods is an insurer against all risks of loss or injury, except those resulting directly from the act of God or the public enemy and without the intervention of human agency.

Imposing penalties against carrier for investigation of claim held to violate Constitution. When the circumstances of a claim against a common carrier clearly warrant a full investigation of, and a test of, the legality and justness of the claim, to impose heavy penalties for doing so, even under statutory authority, would deny to the defendant the rudiments of fair play, which would violate the provisions and principles of the Fourteenth Amendment to the federal Constitution, and of sections 1, 4, and 12 of the Declaration of Rights of the Florida Constitution.

Restriction of provision of uniform bill of lading, as to risk of carrier concerning goods at station 'at which there is no regularly appointed agent,' held to apply to both clauses of provision. The words, 'at which there is no regularly appointed agent,' apply to both clauses of the following provision of the uniform bill of lading, approved by the Interest Commerce Commission: 'Property destined to or taken from a station, wharf or landing at which there is no regularly appointed agent, shall be entirely at risk of owner after unloaded from cars or vessels or until loaded into cars or vessels, and when received from or delivered on private or other sidings, wharves, or landings shall be at owner's risk until the cars are attached to and after they are detached from trains, or until loaded and after unloaded from vessels.' Yazoo & M. V. R. Co. v. Nichols & Co., 256 U.S. 540, 41 S.Ct. 549, 65 L.Ed. 1081.

Usage or custom having force and effect of law or implied contract or of constructive delivery of goods must be clearly and definitely proven. The usage or custom that may have the force and effect of law, or of an implied contract, or of a constructive delivery of goods, must be clearly and definitely proven; and, where the evidence is uncertain and also contradictory, the usage or custom is not established.

On failure of evidence to prove custom of carrier as to delivery of goods for shipment, instruction assuming that such custom was proven held error. When a definite and certain usage or custom, constituting a constructive delivery of freight to a common carrier, is not clearly proven, a charge which assumes that the facts in evidence prove the usage or custom is erroneous.

COUNSEL

Doggett, Christie & Doggett, of Jacksonville, for plaintiff in error.

Milam &amp Milam, of Jacksonville, for defendant in error.

OPINION

WHITFIELD P.J.

In an action to recover $3,512.61 damages, with penalty interest and attorney fees, for three carloads of fertilizer lost or injured by fire after an alleged constructive delivery to the carrier at Jacksonville, for an intrastate shipment, judgment for the amount of the claim and legal interest with attorney fees was rendered for the plaintiff, and defendant took writ of error.

It is contended that a demurrer to the declaration should have been sustained because the negligence alleged is not stated to have been the cause of the loss. Though the second count of the declaration appears to predicate the loss upon negligence of the defendant as a common carrier, the liability of the carrier is not merely for negligence, but for the loss or damage to the freight; and, even if the second count of the declaration is designed to state liability for a mere bailment and does not specifically allege negligence as a proximate cause of the loss, the first count includes an allegation of delivery and appears to be legally sufficient to state liability of the defendant as a common carrier.

'The liability of a common carrier of goods is that of an insurer; and, in cases of loss of or injury to goods intrusted to it for transportation, no excuse avails the carrier, except that such loss or injury was caused by the act of God, or by the public enemies of the state, or by the sole fault of the shipper or his agent. 1 Moore on Carriers, 306. A common carrier of goods is an insurer against all risks of loss or injury, except those resulting directly from the act of God or the public enemy, and without the intervention of human agency. Clyde Steamship Co. v. Burroughs, 36 Fla. 121, 18 South. Rep. 349.' Seaboard Air Line Ry. v. Mullin, 70 Fla. 450, text 453, 70 So. 467, 468 (L. R. A. 1916D, 982, Ann. Cas. 1918A, 576); 4 R. C. L. 696-698; 10 C.J. 107 et seq.

In Gulf Coast Transp. Co. v. Howell & Son, 70 Fla. 544, 73 So. 567, L. R. A. 1916D, 974, negligence was alleged to show that an act of God, an unprecedented flood, was not the sole cause of the loss, but that defendants' neglect of a duty arising out of a custom in the discharge of its common carrier functions was a concurring cause of the loss. See Seaboard Air Line Ry. v. Mullin, supra; Gulf Coast Transp. Co. v. Howell, 67 Fla. 508, 65 So. 661.

The denial of a motion to strike from the declaration the demands under sections 4581, 4582 and 4583, Revised General Statutes 1920, for 50 per cent. per annum interest and attorney fees as a penalty for nonpayment of the claim within 60 days from its filing with the carrier's agent, need not be considered as to the penalty interest, since the judgment includes only the damages shown and legal interest, and attorney fees.

As to the validity of the statutory provision of 50 per cent. per annum and attorney fees, see Chicago & N.W. R. Co. v. Nye Schneider Fowler Co., 260 U.S. 35, 43 S.Ct. 55, 67 L.Ed. 115, where it is held that statutes of this nature 'are to be judged by their application in the particular case; where the result is fair and reasonable, they will be sustained; aliter where it is so arbitrary, unequal, and oppressive as to shock the sense of fairness,' and to violate the Fourteenth Amendment. The possible arbitrary, unequal, and oppressive operation of the penalty provisions of the statute, now sections 4581, 4582, and 4583, Revised General Statutes 1920, in cases not within the limitations stated in Seaboard Air Line Ry. v. Seegers, 207 U.S. 73, 28 S.Ct. 28, 52 L.Ed. 108, is referred to in Atlantic Coast Line R. Co. v. Coachman, 59 Fla. 130, text 158, 52 So. 377, 20 Ann. Cas. 1047.

In view of the amount of the claim, the unusual circumstances of the case, and the uncertainty of the defendant's liability, it was the defendant's right to fully investigate and test the legality and justness of the claim; and to impose heavy penalties for doing so, even under statutory authority, would deny to the defendant the rudiments of fair play which would violate the provisions and principles of the Fourteenth Amendment to the federal Constitution, and of sections 1, 4, and 12 of the Declaration of Rights of the Florida Constitution. See Chicago & N.W. R. Co. v. Nye Schnieder Fowler Co., supra; Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714, 13 L. R. A. (N. S.) 932, 14 Ann. Cas. 464; Florida East Coast R. Co. v. State, 79 Fla. 66, 83 So. 708; 11 A. L. R. 884, notes. Besides this, unreasonable penalties and damages tend to increase service rates or to reduce service efficiency, which is detrimental to the public who are patrons of the common carriers. See Florida East Coast R. Co. v. Geiger, 64 Fla. 282, text 294, 60 So. 753. Apparently this was appreciated by the trial court and by the plaintiff's counsel, who acquiesced in the award of the amount of the claim with legal interest, without the penalty interest demanded in the declaration under the statute. No harm resulted to the defendant by the denial of the motion to strike from the declaration the demand for penalty interest.

The charge of the court to the jury that, 'if you find from the evidence that the plaintiff is entitled to recover, you will include and assess in your verdict interest at the rate of 50 per cent. per annum on the principal sum so found by you,' was as to the allowance of penalty interest, not a permissible application of the statute to the facts of this case; but the verdict approved by the court awarding only legal interest rendered to quoted charge harmless.

The freight was loaded Saturday afternoon, and the cars were not moved before the fire occurred early the next Monday morning.

The defendant contends that, even if there was a constructive delivery to it of the freight in the loaded cars standing on the defendant's side track at the plaintiff's fertilizer factory, the cars had not been attached to a train, and the defendant was not liable under the following provision in the usual bill of lading:

'Property destined to or taken from a station, wharf, or landing, at which there is no regularly appointed agent, shall be entirely at risk of owner after unloaded from cars or vessels or until loaded into cars or vessels, and when received from or delivered on private or other sidings, wharves, or landings, shall be at owner's risk until the cars are attached to and after they are detached from trains, or until loaded into and after unloaded from vessels.'

The defendant had a regularly appointed agent at Jacksonville the station where the cars were...