J.P. Williams Co. v. Pensacola, St. A. & G.S.s. Co.

• Decision Date: 26 January 1909
• Court: Florida Supreme Court
• Parties: J. P. WILLIAMS CO. v. PENSACOLA, ST. A. & G. S. S. CO.

48 So. 630

57 Fla. 237

J. P. WILLIAMS CO. v. PENSACOLA, ST. A. & G. S. S. CO.

Florida Supreme Court, Division B.

January 26, 1909

Error to Circuit Court, Escambia County; J. Emmet Wolfe, Judge.

Action by the J. P. Williams Company against the Pensacola, St Andrews & Gulf Steamship Company. Judgment for defendant, and plaintiff brings error. Affirmed.

COUNSEL

Blount & Blount & Carter, for plaintiff in error.

Avery &amp Avery, for defendant in error.

OPINION

HOCKER J.

The plaintiff in error sued the defendant in error in the circuit court of Escambia county in January, 1907. There are seven counts in the declaration. The first two counts are as follows:

'(1) The plaintiff, a corporation under the laws of the state of Georgia, sues the defendant, a corporation under the laws of the state of Florida, because prior to the institution of this suit the defendant was a common carrier, for hire, engaged in the transportation of goods, wares, and merchandise from the city of Pensacola, Fla., to the city of Carrabelle, Fla., and other points in said state; that prior to the institution of this suit the defendant, as such common carrier, received from the plaintiff the plaintiff's goods, to wit, twenty (20) bales of hay of the value of twenty-three and 81/100 ($23.81) dollars, and for compensation prepaid to it by plaintiff, undertook to transport the said hay from said city of Pensacola to the said port of Carrabelle, and deliver it to plaintiff's consignee; that the said defendant, notwithstanding its said undertaking, and although a reasonable time has elapsed for so doing, has failed to deliver the said goods at the said port of Carrabelle.

'(2) And also because, prior to the institution of this suit, the defendant, a corporation under the laws of the state of Florida, was engaged as a common carrier, for hire, in the transportation of goods, wares, and merchandise from the city of Pensacola, Fla., to the city of Carrabelle, Fla., and other Florida points; that the said defendant, as such common carrier, received from the plaintiff, at Pensacola, plaintiff's goods, to wit, twenty (20) bales of hay of the value of twenty-three and 81/100 ($23.81) dollars, and for compensation prepaid to it by plaintiff, undertook to transport the said hay from the said city of Pensacola to the port of Carrabelle, Fla.; that while the said hay was so in the possession of the said defendant, and after a reasonable time had elapsed for the transportation of said goods, in accordance with the undertaking of the said defendant, a violent storm arose in the port of Pensacola, and the said hay, by reason of the carelessness and negligence of the defendant, was lost and destroyed by said storm.'

The third and fourth counts are similar to the first and second, secept that in each 81 bales of hay of the value of $83.02 are charged to have been delivered for transportation to the defendant.

The fifth count alleges the payment to the defendant of $5.18 as freight on the hay described in the first and second counts. The sixth count alleges the payment to the defendant of $25.13 freight on the hay described in the third and fourth counts.

The seventh count is for the sum of $30.31 money had and received by the defendant for the use of the plaintiff. The seventh count embraces the freight sued for in the two previous counts. The damages are laid at $200.

To the first and third counts of the declaration the defendant on the 4th of March, 1907, pleaded 'that the said goods without any fault or negligence on the part of the defendant were washed away, and lost in, on account of, and by reason of a violent hurricane.' To the second and fourth counts the defendant pleaded not guilty. To the fifth, sixth, and seventh counts the defendant filed the following plea: 'That defendant admits that it is indebted to the plaintiff in the sum of thirty and 31/100 ($30.31), and now brings into court and tenders to the plaintiff the said sum of thirty and 31/100 dollars, together with ----- dollars ($-----) [57 Fla. 240] _____) being the amount of costs accrued and taxable in this case at the date of the filing thereof.'

Afterwards, on the 22d of April, 1907, the defendant filed an additional plea to the first and third counts as follows:

'(6) It received the said goods from the plaintiff with the agreement between the plaintiff and defendant that the same were received and were to be carried as per conditions of defendant's bill of lading, and that defendant's bill of lading, among other things, provides, 'No carrier is bound to carry said property by any particular vessel or train, or in time for any particular market, or otherwise than with as reasonable dispatch as its general business will permit,' and that the said goods were destroyed and lost by reason of a storm before the defendant had an opportunity, with as reasonable dispatch as its general business would permit, to forward the said goods.

'(7) It received the said goods from the plaintiff with the agreement between the plaintiff and the defendant that the same were received and were to be carried as per conditions of defendant's bill of lading, and that defendant's bill of lading, among other things, provides, 'No carrier is bound to carry said property by any particular vessel or train, or in time for any particular market, or otherwise than with as reasonable dispatch as its general business will permit,' and that the said goods were destroyed and lost by reason of a storm, before the defendant had an opportunity, with as reasonable dispatch as its general...