Hammers v. Southern Express Co.

• Decision Date: 12 June 1920
• Citation: 85 So. 246,80 Fla. 51
• Parties: HAMMERS v. SOUTHERN EXPRESS CO.
• Court: Florida Supreme Court

85 So. 246

80 Fla. 51

HAMMERS v. SOUTHERN EXPRESS CO.

Florida Supreme Court

June 12, 1920

Error to Circuit Court, Hillsborough County; F. M. Robles, Judge.

Action by R. C. Hammers against the Southern Express Company. From a judgment of dismissal on plaintiff's refusal to go to trial on a plea to the merits held to be good, he brings error. Affirmed.

Ellis J., dissenting.

Additional Syllabus by Editorial Staff.

Syllabus by the Court

SYLLABUS

Where goods are delivered to a common carrier for transportation and the consignor, being present where the goods are attempts to sell and to actually deliver the goods to a person there present, in violation of federal law, an apparently lawful seizure of the goods by federal officers as an incident to the arrest of the consignor for violating the federal law in attempting to unlawfully sell and deliver the goods, exempts the carrier from liability for the value of the goods, where the seizure amounts to a vis major, and the carrier is not at fault in the premises.

COUNSEL McKay & Withers, of Tampa, for plaintiff in error.

W. A. Carter, of Tampa, for defendant in error.

OPINION

WHITFIELD J.

The declaration herein in effect alleges:

'That heretofore, to wit, on the 2d day of April, 1917, the said defendant was a common carrier of goods and chattels for hire, in and by a certain train of railway cars and in and by certain express cars, from a certain place, to wit, from the city of Tampa, in the state of Florida, to a certain other place, to wit, to the city of New York, in the state of New York, and the defendant being such carrier as aforesaid, the plaintiff heretofore, to wit, on the day, month, and year first aforesaid, at the special instance and request of the said defendant, caused to be delivered to the said defendant so being such carrir as aforesaid certain goods and chattels, to wit, one box of medicine, the property of said plaintiff, of great value, to wit, of the value of $1,750, to be taken care of and safely and securely carried and conveyed by the said defendant, as such carrier as aforesaid, in and by the said train of railway cars and in and by the said express cars, from Tampa, aforesaid, to New York City, to be safely and securely delivered by the said defendant for the said plaintiff to a certain person named Joe Peak, and certain charges thereon collected. And in consideration thereof, and of certain reward to the said defendant in that behalf, it, the said defendant, then, to wit, on the day, month, and year aforesaid, undertook and faithfully promised the said plaintiff, in and by its certain bill of lading or express receipt, which it then and there issued, signed, and delivered to the plaintiff to take care of the said goods and chattels and safely and securely to carry and convey the same in and by the said train of railway cars and in and by the said express cars, from Tampa, aforesaid, to New York City, aforesaid, and there, to wit, at New York City, the place last mentioned, safely and securely to deliver the same for the said plaintiff to the said Joe Peak, and before the said delivery to the said Joe Peak to collect for the plaintiff, and on account of the said shipment, from the said Joe Peak, the sum of $1,750, which sum was name in the said express receipt or bill of lading as and which sum was the true value of the said goods and chattels, and which sum the said defendant in and by its said contract, receipt, and bill of lading agreed to collect on or before delivery and the same to remit and return to the plaintiff with all due expedition. And the said defendant, as such carrier aforesaid, then had and received the said goods and chattels for the purpose aforesaid.

'Yet the said defendant, not regarding its duty as such carrier, nor its said promise and undertaking so made as aforesaid, but contriving and intending to deceive and injure the said plaintiff in this behalf, did not and has not performed its said covenant, promise, and undertaking, in this, that the said defendant carried the said goods and chattels to the destination aforesaid, and thereupon failed and refused to deliver the same to the said Joe Peak or to collect the sum aforesaid from the said Joe Peak or to remit the said sum to the plaintiff, but, on the contrary, the said defendant so carelessly and negligently behaved and conducted itself with respect to the said goods and chattels that by and through the mere carelessness, negligence, connivance, and the improper conduct of the said defendant and its servants in this behalf the said goods and chattels were delivered by the said defendant to a person or persons other than the consignee, Joe Peak, which person or persons had no right or authority to receive the same, and the said defendant then and there, and from thence hitherto, did and has wholly neglected either to collect the sum aforesaid or any other sum on delivery, or to remit to this plaintiff the said sum or any other sum or to return to the said plaintiff the said goods and chattels, but to do the same has wholly failed and refused, by reason whereof the said goods and chattels, as well as the said sum of money, became and were wholly lost to the said plaintiff. And plaintiff avers that claim for the above loss, damage, and delay was duly made by him in writing, through his attorneys, to the said defendant at the point of origin, to wit, Tampa, Fla., and within four months from the time of the occurrences aforesaid.

'Nevertheless the said defendant, not regarding its said several promises and undertakings, hath not kept, performed, or fulfilled the same or either of them, although often requested so to do, but hath broken the same as aforesaid, to the damage of the said plaintiff of $3,000. And therefore the plaintiff institutes this action of trespass on the case.'

The following plea was sustained by the court:

'And for a third plea to each and every count of said declaration defendant says that the plaintiff ought not to have or maintain his action against this defendant, for that the shipment mentioned and set out in each count of said declaration was one and the same shipment, to wit, 25 ounces, more or less, of morphine sulphate and 25 ounces, more or less, of cocaine hydrochlorine, and that the said shipment was from the city of Tampa, in the state of Florida, to the city of New York, in the state of New York, and that the plaintiff at the time of delivery of said shipment to the defendant misbranded said shipment in this, to wit, that he branded said shipment as 'Medicine,' and did not upon said package at any place set out or state that the same contained morphine sulphate or cocaine hydrochlorine, and at the time of said shipment there was in force a valid statute of the United States of America, designated as the 'Anti-Narcotic Law,' prohibiting the sale, barter, or gift of morphine sulphate and cocaine hydrochloride, except in pursuance ofa written order of person to whom the said articles were sold, bartered, or given, on a form to be issued in blank by the Commissioner of Internal Revenue, and making such sale, barter, or gift a misdemeanor.

'And the said defendant further says that the goods mentioned in each count of the declaration in this cause were one and the same, to wit, sulphate morphine and cocaine hydrochloride, and that when the said goods had reached the city of New York, in the state of New York, and were in the possession of the agents of this defendant, the said plaintiff did, in the said city and state of New York, in violation of the statute aforesaid, sell, barter, and give away the same to a man by the name of William H. Fowle. Said sale, barter, and gift was then and there made not in pursuance of a written order of the person to whom the said goods were sold, bartered or given, on a form issued by the Commissioner of Internal Revenue, and that thereupon the said officers of the law, while said goods aforesaid were in the office of this defendant, and while the said plaintiff was in the office of this defendant, attempting to make delivery of said goods to said William H. Fowle, arrested the said plaintiff for the violation of said statute aforesaid, and the said goods in said declaration mentioned were seized by the said officer of the law to be used as evidence against the said plaintiff in a trial for the violation of said law. And thereafter the said plaintiff was duly indicted in the District Court of the United States for the Southern District of New York for the violation of said law as herein set out, and the said goods aforesaid were...