Gulf Coast Transp. Co. v. Howell

• Decision Date: 08 June 1914
• Citation: 65 So. 661,67 Fla. 508
• Parties: GULF COAST TRANSP. CO. v. HOWELL et al.
• Court: Florida Supreme Court

65 So. 661

67 Fla. 508

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

Florida Supreme Court

June 8, 1914

Error to Circuit Court, Lafayette County; F. A. Whitney, Judge.

Action by C. A. Howell and others, partners as Howell & Son, against the Gulf Coast Transportation Company. Judgment for plaintiffs, and defendant brings error. Reversed, and new trial granted.

Syllabus by the Court

SYLLABUS

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.

In this action to recover the value of barrels of rosin placed at a steamboat landing on a river, where there was no warehouse or agent or wharf, and carried away by an unusual freshet brought upon the ground that the steamboat company disregarding its constant and habitual custom and usage negligently failed to stop and take the rosin on the first trip of the boat past the landing, the evidence is held not to show a breach of an implied contract or of a legal duty or actionable negligence so as to make the defendant liable as alleged in not taking the barrels of rosin as freight on the first trip of the boat past the river bank, where the rosin was placed by the plaintiff at an unsafe point without giving notice to the defendant.

COUNSEL Hendry & Whitnell, of Perry, for plaintiff in error.

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

OPINION

WHITFIELD J.

The declaration alleges that the defendant steamboat compnay, disregarding a constant and habitual custom and usage in the premises, carelessly and negligently failed to stop at a river landing, and to accept and receive and promptly and securely carry therefrom barrels of rosin placed at said landing, and that in consequence of which negligence of the defendant 16 barrels of rosin were lost by a great rise of the waters of the river. There was a plea of not guilty and special pleas as to the dangers of navigation in the rising state of the river and as to the usage in receiving freight. The substance of the testimony is as follows: One of the plaintiffs testified:

'It was customary to place the rosin on the bank of the river; there was no warehouse or dock to put the rosin in. When the rosin was so placed at the landing, it was customary for defendant's boat to land and take the rosin and to deliver it either at Branford or at Old Town to the railroad agent, and the railroad agent understood where the rosin was to be shipped without instructions; if we changed the consignee, we always notified the agent. It was the custom for defendant's boat to stop and take on the rosin so placed upon the bank of the river at Rocky Bluff landing without any instructions or notice to the defendant. They understood that it was to be delivered to the railroad either at Branford, or Wannee, or Old Town, and the agent at each of the places understood where it was to be shipped to. The rosin in question was placed by the plaintiffs at Rocky Bluff landing on the 24th day of April, 1912. There were 101 barrels of rosin so placed at Rocky Bluff landing to be shipped. It was the custom for the said rosin to be marked 'Howell & Son' after the partnership was formed, but I had been shipping rosin prior to that, that is, prior to the partnership, which rosin was marked 'C. A. H.' The rosin placed at Rocky Bluff landing on the 24th day of April was marked in the usual way. On that date some time about 2 o'clock in the afternoon, and while the 101 barrels of rosin were at the landing, defendant's boat passed down. I did not see the boat; could not say positively that it was defendant's boat, but I heard it blow and recognized the whistle as that of defendant's boat. I was familiar for several years with the whistle of the 'Hawkinsville.' That at that time the defendant had no other boat upon the river but the steamer Hawkinsville and had not had for some time, and so far as I am aware there were no other large boats plying the river at that time. The boat did not stop and take on the rosin as it was accustomed to do. The river was rising at that time and rose to a great height, the highest I have ever known it, and I have known it for years. It continued to rise, and it was about ten days after the said 24th day of April before it reached its height. It arose to and over the barrels of rosin, and when the river had fallen it had washed away 16 barrels. The 16 barrels which were washed away were the 'water white' rosin. The reason for saying it was the water white rosin which was washed away is because it will float and the other will not. The high grade rosin will float and the cheaper grades will not. All the water white rosin was not washed away; there were several barrels in the bunch, and some of the water white rosin remained; it was wedged in between the other barrels and could not float away. The value of the water white rosin at the time was about $12 per barrel, less the freight; it netted in the neighborhood of $12 per barrel. After April 24th, but before the remaining 85 barrels were carried away by defendant, the steamer Hawkinsville came back to Rocky Bluff landing from Old Town and unloaded a cargo of spirit barrels for the plaintiffs. That so far as I know the boat never passed said landing without stopping and taking on rosin placed there for carriage at its first trip passed. Later the defendant's boat came up and carried away the remaining 85 barrels of rosin and transported it according to the custom, and that without further instructions from us. If the rosin had been moved back 100 feet, it would perhaps have been safe from the water.'

A witness for the plaintiffs testified:

'I was in the employ of Howell & Son at the time the rosin was washed away for which this suit is brought. I was at Rocky Bluff landing on the night of the 24th, 1912, and the rosin was there and the river was still rising. At the time I was there that night the water was several feet from the barrels of rosin; it had not risen to where the barrels of rosin were at the time I was there by several feet.'

Another witness for the plaintiffs testified:

'I am a physician now but at one time was purser on defendant's boat plying the Suwannee river. It was customary for out boat to stop at Rocky Bluff landing and take on rosin which had been placed there, and without any instructions and only with the...