Gulf Coast Transp. Co. v. Howell

• Decision Date: 16 December 1915
• Citation: Gulf Coast Transp. Co. v. Howell, 70 So. 567, 70 Fla. 544 (Fla. 1915)
• Parties: GULF COAST TRANSP. CO. v. HOWELL et al.
• Court: Florida Supreme Court

70 So. 567

70 Fla. 544

GULF COAST TRANSP. CO. v. HOWELL et al.

Florida Supreme Court

December 16, 1915

Error to Circuit Court, Lafayette County; M. F. Horne, Judge.

Action by C. A. Howell and another, partners as Howell & Son against the Gulf Coast Transportation Company, a corporation.Judgment for plaintiffs, and defendant brings error.Reversed.

See also, 67 Fla. 508, 65 So. 661.

Syllabus by the Court

SYLLABUS

A common carrier may, by special arrangement with a shipper or by implication through habitual custom and usage, agree to accept and receive goods for transportation placed along its line for shipment at places other than the regularly designated places for the reception and delivery of freight.

Where goods are lost or injured as a result of the negligent act of the carrier, to whom they have been delivered for transportation, concurring with an act of God, the carrier cannot maintain that the act of God was the sole proximate cause of the loss of or injury to the goods so as to relieve it from liability.

The liability of a common carrier intrusted with goods for transportation is that of an insurer of the goods, and it is held to a strict accountability for injury to or loss of such goods.

A declaration which in substance alleges that although the goods which were delivered to a carrier for transportation were destroyed by an act of God, yet the carrier could have foreseen such result and by the exercise of prudence and diligence could have protected the goods from injury, but that it negligently failed to do so, states a cause of action against the carrier.

Negligence of the shipper concurring with an act of God in the destruction of goods delivered to a carrier for transportation constitutes no defense by the carrier to an action brought against it by the shipper for damages for loss of the goods, where the carrier is also guilty of negligence which, concurring with the act of God, resulted in the loss of the goods.

Where usage and custom is relied upon to show a constructive delivery of goods to a common carrier for transportation, the burden is upon the party relying upon such custom and usage to clearly and definitely establish it; and, where the evidence is uncertain and contradictory, it will be deemed insufficient.

Where the claim is made that, notwithstanding the intervention of an act of God, injury to the goods delivered to a common carrier for transportation would not have occurred but for the negligence of the carrier in exposing them, the burden of proof is upon the party asserting such claim.

The evidence examined, and found to be insufficient to establish a constructive delivery of the goods by the shipper to the carrier for transportation.

COUNSELW. T. Hendry, of Perry, for plaintiff in error.

C. C Howell, of Jacksonville, for defendants in error.

OPINION

ELLIS J.

C. A. Howell and C. C. Howell, partners as Howell & Son, brought suit against the Gulf Coast Transportation Company, a corporation, common carriers of freight for hire upon the Suwannee river, for the alleged negligent failure of the common carrier to accept and transport 101 barrels of rosin belonging to the plaintiffs and which had been delivered by them at a landing on the river for transportation by the defendant corporation, and by reason of which alleged negligent failure of the defendant corporation to accept and transport the freight, a flood, which was then rising in the river, swept away 16 barrels of the rosin, which were lost to the plaintiff.

The declaration alleged, in substance: That the defendant corporation was engaged in the business of a common carrier of freight for hire upon the Suwannee river and for such purpose used a certain steamboat which ran between Cedar Keys and Branford, touching at other landings on the river, among which were Old Town, Wannee, and Rocky Bluff, which latter landing is in Lafayette county.That the defendant kept no agent, station master, nor other servant or agent at Rocky Bluff, but for years previous to the 24th day of April, 1912, it was the constant and habitual custom and usage for persons who desired to ship freight by the defendant's boat to place the freight at the landing at Rocky Bluff, and it was the constant and habitual custom and usage of the defendant to accept and transport all freight placed there for transportation.That prior to said date the plaintiffs and their predecessors in business for years had been engaged in the manufacture of rosin and spirits of turpentine, and had been for years habitually and constantly accustomed to place rosin at that landing for transportation by the defendant without designating the consignee, place of destination, or giving to the defendant any instructions as to the same, but merely marked on the barrels a symbol, initials, or name, denoting the consignors, and that the defendant continuously and habitually accepted and carried the rosin so placed for transportation.That when rosin was placed by the plaintiffs at the landing for transportation marked as aforesaid, the defendant would, as the boat made the trip up the river, take the rosin to Branford and deliver it to the Atlantic Coast Line Railroad Company, and on the trip down the river would take the rosin and deliver it to the Seaboard Air Line Railway at Wannee or to the Atlantic Coast Line Railroad Company at Old Town.That on the 24th day of April, 1912, the plaintiffs had placed 101 barrels of rosin at the Rocky Bluff Landing for transportation by the defendant corporation.The rosin was marked and labeled with the name of the consignors 'Howell & Son.'That the rosin had been placed there by the plaintiffs for transportation, relying upon the custom of the defendant corporation to carry it to Branford, or Wannee or Old Town accordingly as the first boat of the defendant passed up or down the river.That on the 24th day of April, 1912, the water in the Suwannee river was rapidly rising, which fact was known to the defendant.That immediately following that date the water rose to such a height that plaintiffs could not get to Rocky Bluff to protect the rosin from the rapid rise of the river.That during that rise of the river Rocky Bluff Landing was totally submerged by water, and 16 barrels of the rosin floated away and were lost.That on the said 24th day of April, 1912, and after the 101 barrels of rosin had been placed by the plaintiffs at the landing for transportation, the steamboat of the defendant passed the landing at Rocky Bluff between noon and sundown on its way down the river to Wannee and Old Town.That the agent of the defendant in charge of the boat knew that the rosin was at the landing for transportation and could have, by the exercise of ordinary diligence and care, taken it aboard the boat and carried it to Wannee or Old Town, as had been its constant and habitual custom to do, but the defendant carelessly, improperly, and negligently failed to stop its boat at the landing, and 'to accept and receive' and promptly and securely carry the freight therefrom, by reason of which negligence the plaintiff lost the 16 barrels of rosin which were washed away by the flood.

A demurrer to the declaration was interposed by the defendant, the first, second, third, fifth, sixth, seventh, eighth, and ninth grounds of which are argued.These grounds present the following points: First, the defendant had no notice from the plaintiffs, or 'otherwise,' that the goods had been placed at the landing for shipment; second, that the declaration did not allege that the barrels of rosin were properly marked with the name of the consignee and destination, and it was not alleged that the rosin was ready for delivery when the defendant's steamer passed the landing; third, the name of the consignee and destination of the rosin was not alleged; fifth, that the declaration showed that the alleged negligence of the defendant was not the proximate cause of the loss to the plaintiff; sixth, that the declaration showed the damage resulted from the act of God; seventh, the declaration showed that the loss resulted from plaintiffs' negligence; eighth, that the declaration showed contributory negligence on the part of the plaintiffs; and, ninth, that no contract was shown on the defendant's part to carry the goods; that the barrels of rosin were not marked so as to indicate the name of the consignee and destination; that it did not appear that the landing was the 'premises of the defendant,' nor did the declaration show on the part of the defendant any breach of contract or duty in not carrying the rosin.

The overruling of the demurrer was assigned as the first error.

The theory upon which the declaration is framed is that the defendant, as a common carrier of freight by habitual custom and usage, agreed with its patrons, particularly the plaintiffs, that the deposit of goods by the shipper for transportation at Rocky Bluff Landing would constitute a delivery to the defendant at that point upon the passage of its first steamer; that such custom constituted an offer by the defendant to receive goods in that way for transportation.That by habitual custom and usage, as practiced between the plaintiffs and the defendant, rosin in barrels shipped by the plaintiffs bore no other mark or symbol of ownership than the name or initials of the plaintiffs, and no other shipping directions or instructions were required to be given, and that the defendant should, upon the passage of its first steamer, take the freight and carry it to Wannee and deliver it to the Seaboard Air Line Railway or to Old Town and deliver it to the Atlantic Coast Line Railroad, if the defendant's first passing steamer was going down the river, or, in case the steamer should be going up...