Seaboard Air Line R. Co. v. Lake Region Packing Ass'n

• Decision Date: 29 May 1968
• Docket Number: No. 1338,1338
• Parties: SEABOARD AIR LINE RAILROAD COMPANY, Appellant, v. LAKE REGION PACKING ASSOCIATION, Appellee.
• Court: Florida District Court of Appeals

Page 25

211 So.2d 25

SEABOARD AIR LINE RAILROAD COMPANY, Appellant, v. LAKE REGION PACKING ASSOCIATION, Appellee.

No. 1338.

District Court of Appeal of Florida, Fourth District.

May 29, 1968.

Rehearing Denied June 28, 1968.

George T. Eidson, Jr., and J. Thomas Cardwell of Akerman, Senterfitt, Eidson, Mesmer & Robbinson, Orlando, for appellant.

Charles T. Wells and M. W. Wells of Maguire, Voorhis & Wells, Orlando, for appellee.

REED, Judge.

Lake Region Packing Association, the plaintiff, filed a complaint against the defendant, Seaboard Air Line Railroad Company (now known as Seaboard Coast Line Railroad Company), in the Circuit Court of the Ninth Judicial Circuit in Orange County, Florida. In its complaint, the plaintiff alleged that on November 22, 1963, it delivered to the defendant at Tavares, Florida, in good condition, a trailer load of fresh tangerines for transportation by the defendant and its connecting carriers to Philadelphia, Pennsylvania, and delivery to A. Cancelmo Company as consignee; that the goods were negligently transported by the defendant, a common carrier, and as a consequence delays occurred preventing the delivery of the tangerines in time for sale at an auction in Philadelphia on November 25, 1963. As a proximate result of the delay, according to the complaint, the tangerines were not sold until the following morning at a lesser price than could have been obtained had they been sold at the auction on November 25th as was intended by the plaintiff.

The defendant's answer admitted that it was a common carrier but substantially denied the other allegations in the complaint.

The cause was tried before a jury which rendered a verdict for the plaintiff and the defendant brings this appeal from the final judgment and the denial of its motion for a new trial. The points argued by the defendant on appeal relate to the admissions of certain testimony adduced by the plaintiff and to the jury instructions.

The bill of lading under which the tangerines were shipped provided that the carrier shall be liable as at common law for any loss or damage. It also provided that, 'No carrier is bound to transport said property by any particular train * * * or in time for any particular market or otherwise than with reasonable dispatch. * * *' Thus it is clear that this case does not involve a special contract calling for delivery at a particular time. The liability of the defendant with respect to the time for the transportation must be measured by the duty imposed on it by common law as modified by the Carmack Amendment to the Interstate Commerce Act, U.S.Code Sec. 20(11), which imposes liability on the initial carrier for loss or damage occasioned by a connecting carrier. ¹

With regard to the liability of the common carrier for the transportation of goods entrusted to it, the ably prepared briefs of both parties have provided the court with numerous citations. After a review of these citations as well as others, it is amply apparent that a multitude of formulas have been employed by the courts for the purpose of verbalizing this duty. For example, it has been held that a carrier is obligated to transport goods within a reasonable time. ^1A It has also been held that although a common carrier is not an insurer of delivery in time for any particular market, ² it must complete the shipment without unnecessary delay. ³ Other cases have said that it is the duty of the carrier to avoid unreasonable delay; ⁴ to ship the goods with all convenient dispatch; ⁵ or to exercise reasonable diligence, care, and dispatch in performing the transportation. ⁶

Despite the divergent language in the various cases, it is clear that the duty therein sought to be imposed on the common carrier with respect to the transportation and delivery of goods is based on the law of negligence. The common carrier, therefore, is obligated, in the absence of a special contract or statute, to use reasonable care to transport the goods entrusted to it by a shipper. ⁷ If the carrier exercises reasonable care under the circumstances and the shipment is delayed, no liability attaches. ⁸ On the other hand, if the carrier fails to exercise reasonable care under the circumstances and as a proximate result consumes more time in the transportation than would have been required had reasonable care been exercised, such excess time is a delay which when proximately causing damage gives rise to a cause of action.

Because any delay which may occur in the course of transportation after the goods have been delivered to the common carrier is far more apt to be known to and understood by the carrier than the shipper, the courts have constructed a presumption as a procedural device to aid the shipper in the presentation of his case. ⁹ Here, as elsewhere, there are various statements as to what must be proved by the shipper to give rise to the presumption; however, we think that a fair review of the authorities indicates that where a shipper presents competent evidence which fairly and reasonably tends to show that his goods were not transported in the time ordinarily and customarily required by the defendant for the transportation of similar goods between the points involved and damage proximately resulting from such delay, the shipper makes out a prima facie case and is entitled to the benefit of a presumption of negligence in his favor. ¹⁰ Of course the effect of this presumption is not to shift the burden of proof but--as with other presumptions of this nature--places the burden of going forward with the evidence on the defendant to show that the delay was not attributable to its negligence. The presumption vanishes when any material evidence is produced by the defendant fairly and reasonably tending to rebut the presumed fact. When the defendant comes forward with such evidence, the entire matter should be deposited with the trier of facts for its determination, unless the defendant makes his lack of negligence so clearly appear that the issue becomes one of law for decision by the court. ¹¹

We are aware that there is a minority view apparently adopted in only one jurisdiction which denies the benefit of this presumption to the shipper and requires that he make an actual showing of negligence in order to be entitled to get to the jury. ¹² We do not believe that the minority view is consistent with the trend of the law in Florida ¹³ and, therefore, do not choose to apply it here.

Turning now to the contentions of the defendant, it submitted a requested jury instruction at the time of trial which stated:

'What is a reasonable time is not susceptible of being defined with precision, but the circumstances of each particular case must be considered in order to determine what is the reasonable time in that case. The mode of conveyance, the distance involved, seasons of the year, the character of the weather, the ordinary facilities for transportation, and the volume of traffic are examples of factors to be considered in determining whether, in this particular case, there was an unreasonable delay.'

The defendant argues on appeal that the trial court erred in not giving this instruction. It is our view that the requested instruction was properly refused because it sought to express the duty of the carrier in terms of 'a reasonable time' and this concept, insofar as a jury instruction is concerned, is meaningless when separated from the duty of reasonable care. The term 'reasonable time' as used in the various cases dealing with a common carrier's duty to transport, actually refers to the end result of the exercise of reasonable care by the carrier in transporting goods. Furthermore, the factors mentioned in the instruction such as weather, distance, etc., could have been considered by the jury under the court's general instruction defining negligence and its more specific instructions relating the defendant's liability to negligence.

Next, the defendant complains that instead of instructing the jury as defendant requested:

'* * * The burden is upon (plaintiff) to prove by a fair preponderance of the evidence, first that the defendant-railroad negligently failed to transport the trailer of tangerines to Philadelphia, Pennsylvania, with reasonable dispatch Under the circumstances. * * *'

the court erroneously altered the requested instruction by deleting the phrase 'under the circumstances'. The defendant argues that this charge, when given as altered, prevented the jury from considering the circumstances of the shipment. It is our view that the term 'negligently' as used in the charge is sufficiently defined in other instructions to relate the particular instruction to the circumstances surrounding the transportation in question.

Next, the defendant charges that the trial court erred in giving the following instruction:

'Under the law in an action to recover from a carrier for market decline due to failure to transport and deliver within the usual time, the shipper establishes his prima facie case when he shows delivery to the carrier at origin, failure to deliver in the usual and customary time, and the amount of damages, * * * Thereupon, the carrier may show that it was free from negligence and that the damage was not due to unreasonable delay.'

According to the defendant, the instruction was erroneous in that: (1) it directed the jury not to consider the circumstances of the particular transportation; (2) it equated usual and customary time to reasonable time; and (3) it placed the burden of proof on the defendant. While we cannot approve the form of this charge because it comes dangerously close to instructing the jury on a presumption, we also cannot agree with the defendant's contentions. The last sentence in the instruction clearly informs the jury that the carrier may excuse itself by showing a freedom from negligence. The instruction, therefore, does not impose absolute liability on the carrier for failure to deliver within the usual...