Seaboard Air Line Ry. v. Rentz

• Decision Date: 20 December 1910
• Citation: 60 Fla. 449,54 So. 20
• Parties: SEABOARD AIR LINE RY. v. RENTZ et al.
• Court: Florida Supreme Court

54 So. 20

60 Fla. 449

SEABOARD AIR LINE RY. v. RENTZ et al.

Florida Supreme Court, Division B.

December 20, 1910

Error to Circuit Court, Marion County; Richard McConathy, Referee.

Action by E. P. Rentz and another against the Seaboard Air Line Railway. Judgment for plaintiffs, and defendant brings error. Reversed.

Syllabus by the Court

SYLLABUS

The seventh rule of the rules of the circuit court in common-law actions (37 South. vi), adopted by this court at the April term, 1873, prescribing what a praecipe for process in personal actions shall contain, having been in force in this state for nearly 40 years, must be taken as the construction by this court of the statutes authorizing it to make rules of practice.

The compulsory amendment of a pleading is within the discretion of the circuit judge, and his refusal to grant a compulsory admendment is not reversible error, unless it affirmatively appears that the party moving suffered injury by the refusal.

Several acts of negligence alleged as a series of causes tending to the same point and terminating in death or injury may be alleged in one count of a declaration as affording one cause of action.

Where the damages claimed of a railroad company is a declaration are not alleged to have been caused either by the running of locomotives or cars, or by any person in the employ and service of such railroad, sections 3148 and 3149, Gen. St 1906, do not apply to the case.

In a suit for damages against a railroad company, where the plaintiff's own act or negligence caused the damage, it may be shown under the general issue of not guilty; but where mere contributory negligence is relied on as a defense it should be specially pleaded.

A letterpress copy of an account made by the plaintiff and sent to the defendant cannot be produced in evidence, when the defendant was not called on to produce the original, and there is no showing that the original was lost or destroyed.

The purpose of having attorneys is to aid the courts in examining the law and in sifting the evidence in order that justice may be administered, and the party on whom the burden lies in opening his case should fairly state the principles of law and the particular evidence on which he relies so that the opposite attorney may have an opportunity to discuss the proposition thus presented, and to present his own views of the case. The party who opened the case has, then, the right of reply. The whole case can thus be fairly presented to the tribunal which has to decide it. We commend this method of procedure as tending to prevent any unfair advantage to either party, and as promotive of the ends of justice.

COUNSEL Geo. P. Rainey and L. N. Green, for plaintiff in error.

H. M Hampton, for defendants in error.

OPINION

HOCKER J.

An action for damages was brought in the circuit court of Marion county, Fla., by the defendants in error against the plaintiff, charging it with having 'negligently and carelessly failed and refused to feed and water certain live stock (mules), and negligently and carelessly failed to transport and deliver the same with reasonable promptness and dispatch, whereby the said live stock became and were starved, thirsty, and greatly injured and damaged.' The said live stock having been shipped over its road from Savannah, Ga. There are two counts in the declaration; one alleging a shipment on the 6th day of December, 1906, and the other a shipment on the 4th of January, 1907.

The first count of the declaration is as follows:

'The plaintiffs, E. P. Rentz and J. C. Little, as copartners doing business under the name and style of E. P. Rentz Lumber Company, sues the defendant, Seaboard Air Line Railway, a railroad corporation doing business in the state of Florida, for that:

'Whereas, the defendant, before and at the times hereinafter mentioned, was a railroad corporation, and as such operated a line of railroad from the city of Savannah, in the state of Georgia, to the town of Silver Springs, in the state of Florida, in Marion county, Fla., as a common carrier of freights, and that on the 6th day of December, 1906, plaintiffs delivered to the Central of Georgia Railroad Company, a railroad corporation, operating a line of railroad from the town of Adrian, in the state of Georgia, to the city of Savannah, in the state of Georgia, 17 head of live stock, to wit, 17 head of mules, for transportation from the said town of Adrian, in the state of Georgia, to the town of Silver Springs, in Marion county, Fla., that the same were loaded in car belonging to the Central of Georgia Railroad Company, and that afterwards, to wit, on the 7th day of December, 1906, the Central of Georgia Railroad Company delivered the said car load of 17 mules to the said Seaboard Air Line Railway at said city of Savannah, in the state of Georgia, and the said Seaboard Air Line Railway then and there accepted the said car, and undertook to deliver the said mules in good condition to the plaintiffs at the said town of Silver Springs; and plaintiffs aver that then and there it became and was the duty of the said defendant to care for, feed, and water the said mules en route between the said city of Savannah, in the state of Georgia, and the town of Silver Springs, in Marion county, Fla.; but plaintiffs aver that the said defendant after having accepted the said car of mules for transportation and delivery, as aforesaid, negligently and carelessly failed and refused to feed and water the said live stock, and negligently and carelessly failed to transport and deliver the same with reasonable promptness and dispatch, and that by reason thereof the said live stock became and were starved, thirsty, and greatly injured and damaged, so that 10 of the said mules thereby sickened and died from the effects of such neglect of the defendant, and that 7 other of the said mules became weakened, emaciated, injured, and damaged, and depreciated in value, and unfit for use by plaintiffs, and by reason of the said neglect plaintiffs were greatly injured and damaged, and bring this suit and claim $5,000 damages.'

There was no recovery on the second count.

The first count alleges that 10 mules died from the negligent conduct of the defendant and 7 were injured and depreciated in value. After the issues were made up, the case was referred to Richard McConathy, Esq., as referee, who after hearing the evidence rendered a judgment on the first count in favor of the plaintiffs for $3,500, with interest at 8 per cent. per annum from January 1, 1907, amounting to $4,060. From this judgment a writ of error was taken.

The first assignment of error is based on the ruling of the circuit judge denying a motion to quash the praecipe for summons ad respondendum, for a failure to state therein 'the nature of the action' as required by section 1392 of the General Statutes of 1906. The praecipe, after describing the count, is as follows:

'E. P. Rentz and J. C. Little, as Copartners under Firm Name and Style of E. P. Rentz Lumber Company, Plaintiffs, v. Seaboard Air Line Railway, a Railroad Corporation, Defendant.

'Action at Law. Damages, $5,000.00.'

Section 1392, supra, was originally passed in 1828, and requires that the praecipe or memorandum for beginning a suit at law shall state the 'names of the parties, the nature of the action, and the amount of the debt or damages for which the plaintiff sues.'

By section 12 of chapter 1938 of the Acts of 1873, authority was conferred on the Supreme Court to make any and all rules of practice, pleading, and proceedings to carry out the provisions of this act, which was an act to revive the practice of pleadings and proceedings existing on the 19th February, 1870, and to provide additional rules of practice and pleading. In pursuance of the authority thus conferred upon the court at the April term, 1873, it adopted certain rules of the circuit court in common-law actions, to be in force after the 1st day of June, 1873.

The seventh of these rules prescribes that the praecipe for process in personal action shall contain the title of the case, the description of the court in which the action is brought, the amount of the debt or damage for which the plaintiff sues, the day to which the process is returnable, and shall be signed by the plaintiff or his attorney.

This rule must be taken as the construction by this court of the statutes referred to, and this construction has been acquiesced in and followed for nearly 40 years. The praecipe in the instant case is in conformity with this rule (7). See Seaboard Air Line Railway v. Rentz (filed herewith) 54 So. 13.

The second ground of error presented is that the court erred in overruling a motion of the defendant for the compulsory amendment of the declaration in a number of particulars. The fifth, seventh, eighth, and ninth of said grounds for compulsory amendment are presented here. The fifth ground is as follows: 'By stating the amount of money claimed by defendants in each instance for those animals alleged to have died and those which did not die, in order for this defendant to be advised as to the proportionate claim for animals dying and those not dying.' The declaration tested by accepted principles of common-law pleading applicable to a case like the instant one is defective. The third rule stated in Andrews, Stephen's Pleading, § 163, is: 'The pleading must specify quality, quantity and value.' And continues: 'It is in general necessary where the declaration alleges any injury to goods and chattels, or any contract relating to them, that their quality, quantity and value or price should be stated.' The only actions in which this rule does not apply are actions of debt and indebitatus assumpsit. Id. § 165. See, also, 2 Saunders...