59 Fla. 130 | Fla. | 1910
Lead Opinion
The defendant in error sued the plaintiff in error in the Circuit Court for Suwannee County for loss and damage occasioned by the railroad company in the negligent and careless transportation of horses and mules belonging to the plaintiff.
By agreement of the parties, the cause was referred to J. F. Harrell, Esquire, a practicing attorney of the court, for trial.
The finding of the referee, upon a plea of not guilty, was as follows:
“I, J. F. Harrell, to whom the above stated cause was heretofore referred as referee by the judge of the Circuit Court in and for Suwannee County, Florida, for trial, as such referee do hereby find upon the evidence taken before me for the plaintiff, B. P. Coachman, and assess his damage at $450.00. I further find that plaintiff is entitled to the further sum of $225.00, or fifty per cent interest on the above amount under the statute.
I further find that the plaintiff is entitled to the further sum of $200.00 as attorney’s fees.”
Afterwards, in accordance with an order made by the
On writ of error, the defendant below contends that the statute authorizing the award of interest and attorney’s fees herein is unconstitutional, because it offends against the equal .protection clause of the State Constitution and the inhibition of Article XIY of the Constitution of the United States.
The provisions of Chapter 5618, Laws of 1907, under which recovery of interest and attorney’s fees herein was had, are as follows:
“Section 1. That it shall be the duty of all common carriers operating within this State, and they are hereby required when any person files with, or presents to, them or any station agent of said common carrier to be filed, his claim for any freight or express lost or damaged by said common carrier, or for any over-charge made by such common carrier on any freight or express, to pay the said claim within sixty days from its filing with, or presentation to, said common carrier or any station agent of such common carrier.
Sec. 2. That should any common carrier fail to comply with the provisions of section one (1) of this act, then the said common carrier making such failure shall be liable to the claimant for the amount of his claim and fifty per cent, per annum interest on the principal sum of said claim from the date of the filing of the same with, or presentation of the same to, the common carrier or any station agent of such common carrier, and when the said claimant shall bring suit and recover judgment for his claim against said common carrier, he shall be allowed the said fifty per cent per annum, in addition to the principal sum of said claim, and the same shall be allowed in*136 the verdict giving him judgment; provided, however, that the claimant shall not recover and have judgment for the said fifty per cent per annum, unless he recovers judgment for a sum which fixes the principal sum of said claim at an amount greater than the amount which said common carrier had offered and tendered to the claimant in settlement of his claim before the expiration of said sixty days in which the said common carrier is required to pay such claims under the provisions of section one (1) of this act.
Sec. 3. That any common carrier who fails to comply with the provisions of section one (1) of this act, shall, in the event that the claimant shall prevail in an action to recover on his claim, be liable for a reasonable attorney’s fee and it shall be the duty of the court to allow the claimant such reasonable attorney’s fee, which shall be fixed by the court, not to exceed fifteen dollars, if the amount recovered does not exceed one hundred dollars, and not to exceed fifteen per cent on any amount recovered greater than the sum of one hundred dollars.”
In Seaboard Air Line Ry. v. Simon, 56 Fla. 545, 47 South. Rep. 1001, we held that in providing for the regulation of settlement for goods lost in transit by “any person, firm or corporation operating any railroad in this State,” a subject applicable alike to all common carriers of goods, Chapter 5424, Acts of 1905, made a separate classification of persons, firms or corporations operating railroads that is not based upon legal or natural, practical and reasonable differences in conditions with reference to the subject regulated, and violated in this respect the constitutional guaranties'of due process of law and the equal protection of the laws. To the like effect is die holding of the Supreme Court of the United States in Gulf, C. & S. F. Ry. Co. v. Ellis, 165 U. S. 150, 41 L. Ed. 666, 17 Sup. Ct. Rep. 255.
The provisions of Chapter 5618 Acts of 1907, however,
The statute will not be said to offend against the equal protection clause 'of the State Constitution or the inhibition of Article XIY of the Federal Constitution merely because it permits a recovery of interest and attorneys fees by the shipper if he succeeds, and secures no such right to the carrier in the event it prevails in the suit. The shipper and the carrier are not similarly situated. The shipper assumes the discharge of no duty to the public. He injures no one. And so the statute applies to the carrier—to all carriers similarly situated,—and places its penalty or burden upon the carrier and not upon the shipper, because the carrier only is within the sphere of its operation. This court, therefore, has held, as not in conflict with the State or Federal Constitutions, statutory provisions for attorneys fees when judgment is rendered in favor of the plaintiff in the enforcement of mechanics’ liens, Dell v. Martin, 41 Fla. 221, 26 South. Rep. 188, S. C. 45 L. R. A. 201; also, in case of recovery for live stock killed, Jacksonville, T. & K. W. Ry. Co. v. Prior, 34 Fla. 271, 15 South. Rep. 760; also, in suits upon policies issued by insurance companies, Tillis v. Liverpool & L. & G. Ins. Co., 46 Fla. 268, 35 South. Rep. 171; Hartford Fire Ins. Co. v. Redding, 47 Fla. 228, 37 South. Rep. 62.
It is not necessary that a statute passed in the exercise of the police power shall apply equally and uniformly to all persons of the State, but it is sufficient to satisfy the constitutional requirement of equal protection of the law if it applies equally and uniformly to all persons similarly circumstanced. Wright v. Hart, 182 N. Y. 330, 75 N. E. Rep. 404, 2 L. R. A. (N. S.) 338.
We think, too, the subject matter of this statute is
From considerations of public policy, the differences between the private and common carrier have led to rules respecting the duty of the latter which do not apply to the former. The common or public carrier of goods exercises a sort of public office, and his business, therefore, is affected with a public interest. Munn v. People of Illinois, 94 U. S. 113, 24 L. Ed. 77.
Since railroad companies are created by the State for quasi-public purposes and are thereby affected by a public interest, the legislature may to the extent of such interest regulate and control them except in so far as it is restricted by the contract obligation imposed by the charter or statute under which the companies are incorporated, and subject of course to the constitutional restrictions against the impairment of vested rights, denial of .the equal protection of the laws, or due process of law.
The police power of a State embraces regulations designed to promote the public convenience or the general prosperity or the public welfare as well as those designed to promote the public safety or the public health. Chicago B. & Q. R. Co. v. People of State of Illinois ex rel. Drainage Com’rs, 200 U. S. 561, 50 L. Ed. 596, 26 Sup. Ct. Rep. 341; Lake Shore & M. S. Ry. Co. v. State of Ohio, 173 U. S. 285, 43 L. Ed. 742, 19 Sup. Ct. Rep. 465.
The police power includes legislative authority to make regulations reasonably necessary or conducive to the public welfare. State ex rel. Milwaukee Medical College v. Chittenden, 127 Wis. 468, 107 N. W. Rep. 500.
In speaking of the provisions of the Texas statute whereby life insurance companies failing to pay a loss within a time specified in the policy after demand therefor are made liable to the payment of a certain per cent damages on the amount of the loss, and all reasonable
In Atchison, T. & S. F. R. Co. v. Matthews, 174 U. S. 96, 43 L. Ed. 909, 19 Sup. Ct. Rep. 609, the court held the provision of the Kansas statute requiring a reasonable attorney’s fee for the plaintiff to be allowed and made a part of the judgment on a recovery against a railroad company for damages from fire caused by the operating of its trains, is in the nature of a police regulation designed to enforce care on the part of railroad companies to prevent the escape of fire froih their moving trains, which subjects the property of adjacent owners to peculiar hazard, and has a reasonable relation to the object sought to be accomplished, although the statute imposes no specific duty by way of precaution; and the provision is not in violation of the fourteenth constitutional amendment, as an arbitrary classification of suitors, which deprives those affected of the equal protection of the laws. The Supreme Court of the United States, in speaking of the purpose of the statute, said: “Its monition to the railroads is not, pay your debts without suit or you will, in addition, have to pay attorney’s fees; but rather, see to
In Porter v. Charleston & S. Ry. Co., 63 S. C. 169, 41 S. E. Rep. 108, 90 Am. St. Rep. 670, the court held that 22 St. at Large, p. 443, of South Carolina providing a penalty on common carriers for failure to pay or to refuse to pay damages on freight within 60 days is not in violation of the Const. U. S. Amendment 14, as denying equal protection of law. See also Frasier v. Charlestown & W. C. Ry, 73 S. C. 140, 52 S. E. Rep. 964.
And so, the Supreme Court of the United States, in upholding the constitutionality of a statute providing that every claim for loss or damage to property in possession of a common carrier shall be adjusted and paid within a specified time, and if not then paid the carrier should be liable to a penalty, shows that “the object of the statute was not to penalize the carrier for merely refusing to pay a claim within the time required, whether just or unjust, but the design was to bring about a reasonably prompt settlement of all proper claims, the penalty, in case of recovery in court, operating as a deterrent of the carrier in refusing to settle just claims; and as compensation of the claimant for the trouble and expense of the suit which the carrier’s unreasonable delay and refusal made necessary.” Seaboard Air Line Ry. v. Seegers, 207 U. S. 73, 52 L. Ed. 108, .. Sup. Ct. Rep. ... “Further,” the court remarked in that case, “it must be remembered
One of these duties which the carrier assumes is to carry safely and deliver goods intrusted to it for carriage. Whenever a railroad company receives livestock and undertakes to transport the same for hire, such company assumes the relation of a common carrier and is held to a very strict accountability for the loss thereof, such accountability being independent of contract and imposed by law on grounds of public policy. Summerlin v. Seaboard Air Line Ry, 56 Fla. 687, 47 South. Rep. 557. By providing for the increase of damages where the loss or injury results from the want of care and the negligence of the carrier in transportation of freight, the statute causes the carrier to exercise more care in the handling of the freight by its servants and agents. The legislature is presumed to have full knowledge of the conditions within the State and to intend no arbitrary selection or punishment, but to subserve merely the general interest of the public. Atchison, T. & S. F. R. Co. v. Matthews, 174 U. S. 96, 43 L. Ed. 909, 19 Sup. Ct. Rep. 609.
This statute designs, also, to bring about a reasonably prompt settlement of all proper claims, and a reasonably speedy trial thereon, for the statute is so framed that the penalty of fifty per cent per annum interest which acts as a deterrent of the carrier in refusing to settle just claims, becoming included in the verdict, ceases to run thereafter, and the judgment therefor only bears eight per cent per annum. The statute tends to avoid expensive and annoying delays in litigation. “The corrosion of time acts on the causes of action, and wears out justice.” These delays become annoying to lawyers, expensive and damaging to litigants, and, affecting as they must do
Yerily, the subject matter of this statute meets the test of constitutionality-—the test being whether it has some relation to the public welfare, and whether such is, in fact, the end sought to be attained. Iler v. Ross, 64 Neb. 710, 90 N. W. Rep. 869, 97 Am. St. Rep. 676.
We know that there are limits beyond which legislation and penalties may not go, even in cases where the • classification is concededly legitimate and the subject matter admittedly proper. It remains to be seen then whether the statute under review has gone beyond that limit in the nature and method of the regulations. -
It requires no argument to show that the limit of time, sixty days, fixed by the statute for the .investigation and settlement of these claims is reasonable. There is no conflict either in the authorities on this point.
Now, as to the reasonableness or legality of the penalty imposed for a failure to pay the claim within sixty days. It will be observed that the penalty imposed is not fifty per cent of the amount of the claim. The penalty is interest on the claim—interest at the rate of fifty per cent per annum, or a fraction over four per cent per month, not until the claim be paid, but interest only until a trial is had and judgment for the plaintiff is rendered, and thereafter the judgment only bears eight per cent per annum interest until paid. If the carrier will meet the plaintiff half way in seeking a speedy trial of the cause, the payment of this penalty may be avoided within about three months on claims within the jurisdiction of our inferior courts and about four to six months on claims in the Circuit Courts. Thus the penalty recoverable on a claim for $100, if collected by suit in three months would be only $12.50 interest; or, if the
In Harp v. Fireman’s Fund Ins. Co., 130 Ga. 726, 61 S. E. Rep. 704, 14 Am. & Eng. Ann. Cas. 299, and comprehensive note thereto on p. 301 the court held that a statute providing for the recovery of 25 per cent* damages and attorney’s fees against insurance companies is not violative of the constitution of the State or the United States. Under this statute, on a $100 claim, the plaintiff would be allowed $25.00, while under our statute he would recover the same amount only if the suit were tried and judgment rendered in six months after refusal to pay the claim.
This court in Pensacola & A. R. Co. v. Braxton, 34 Fla. 471, 16 South. Rep. 317, has sustained the recovery under Section 2 of Chapter 3742, Acts of 1887, of interest at the rate of fifty per cent per annum in addition to the actual damages together with attorney’s fees upon the failure of railroad companies to pay, within 30 days, for the cattle killed by them, where the companies fail to fence their -tracks as required by the statute. See also Jacksonville, T. & K. W. Ry Co. v. Prior, 34 Fla. 271, 15 South. Rep. 760.
In 1891, by Chapter 4069 the legislature authorized the recovery of double damages and attorneys’ fees from the
In 1899, by section 5 of Chapter 4706, again the legislature increased the penalty for a failure to pay within 30 days the claim for cattle killed where the railroad track was not fenced, to double the value of the animal killed and for attorneys’ fees, instead of fifty per cent per annum interest, and such remains the penalty to this day (section .2871, General Statutes), the time for payment of the claim being enlarged to sixty days.
If the question comes before us under this statute, will this court say that the penalty of double damages awarded thereby is exorbitant and excessive, because forsooth it at one time was only 50 per cent per annum interest? Certainly not, for this court has already said in Florida E. C. R. Co. v. Hazel, 43 Fla. 263, 31 South. Rep. 272, while considering the act of 1891, that there can be no doubt “it would be competent for the legislature to provide the means for its enforcement, and in doing so to authorize the recovery of double damages and attorneys’ fees.”
Under the statute and the decision of this court if the railroad company fail to pay within 60 days a claim of $100 for stock killed by it, when the track is not fenced, the owner of the property may recover $100 in addition to the actual value of the property, besides attorneys’ fees.
Under the statute sued upon here, if the railroad company fail to pay within 60 days, a claim of $100 for freight, it may be stock, lost or damaged (killed perhaps) by it, the owner of the property may recover, after six months delay for a trial the value of the property, plus 50 per cent per annum, or $25, besides attorneys’ fees.
In Missouri, K. & T. Ry Co. v. Board of Comm’rs of Labette County, 9 Kan. App. 545, 59 Pac. Rep. 383, the court held the statute imposing a penalty of 50 per cent per annum interest for a refusal to pay taxes and bringing injunction proceedings, instead of paying the taxes under protest did not contravene the constitution of Kansas, or the Fourteenth Amendment of the Constitution of the United States.
In Iowa, by statute common carriers are made liable for damages occasioned to baggage or other property of travellers through careless or negligent handling thereof and compensation of not less than three dollars for every day’s detention to travellers in consequence of such damage and necessary delay in suit for same. Anderson v. Toledo, W. & W. R. R. Co., 32 Iowa 86.
In Kingsbury v. Missouri, K. & T. Ry Co., 156 Mo. 379, 57 S. W. Rep. 517, the court held to be constitutional a statute authorizing a recovery of double damages against railroad companies sustained by reason of stock entering adjoining lands from the right of way in consequence of insufficient fences.
In Gorman v. Pacific R. R., 26 Mo. 441, text 450, single damages only were recoverable, afterwards double damages were authorized by statute.
Sometimes statutes authorize four times the actual damages to be recoverable.
The fixing of a rate of interest by the legislature is a matter of judgment. The rate of interest where no public duty is involved is necessarily an arbitrary one. It is now eight per cent per annum. The legislature could make it ten or twelve per cent tomorrow. May not the legislature impose a penalty of twenty-five per cent for the failure of the public duty here involved, and if experience and the conditions demonstrate that it does not accomplish the purpose of the statute, may not the legislature" increase the rate of interest, or penalty, within the bounds of reason, until the result arrived at be accomplished? Whether for this reason we do not know, but the fact is the rate of interest was fixed at twenty-five per cent by the statute of 1905, while by the statute of 1907, and again by the statute of 1909, the rate is fixed at fifty per cent.
In Western Union Tel. Co. v. State of Indiana, 165 U. S. 304, 41 L. Ed. 725, 17 Sup. Ct. Rep. 345, in speaking of the amount of the penalty of 50 per cent (not fifty per cent per annum) for non-payment of taxes by a telegraph company, the Supreme Court of the United States, speaking through Mr. Chief Justice PULLER, said: “The amount of the penalty was a matter for the legislature to determine in its discretion, and the Supreme Court refers to the imposition of penalties in other instances under the statutes of Indiana, varying according to the particular subjects of taxation, apparently calculated to operate with quite as much harshness.”
Police regulations may not be declared void because deemed contrary to natural justice and equity, but only because they violate a constitutional right. State v.
In Hayes v. Walker, 54 Fla. 163, 44 South. Rep. 747, this court said: “A liberal rule of construction should be applied when the constitutionality of a statute is questioned and every reasonable doubt should be resolved in favor of the validity of the statute assailed. The court-should, in deference to the legislative department of the government, uphold a statute alleged to be unconstitutional, unless it is clearly made to appear beyond a reasonable doubt that the statute is unconstitutional.” In the same case, this court held: “Classifications for pur-
poses of legislation may be made with reference to similarity of situation, circumstances, requirements and convenience to best subserve the public interest. The test as to the validity of classification for purposes of legislation is good faith, not wisdom.” In Seaboard Air Line Ry v. Simon, 56 Fla. 545, text 551, 47 South. Rep. 1001, citing Billings v. Illinois, 188 U. S. 97, 23 Sup. Ct. Rep. 272, this court said: “Great latitude should be accorded to the legislature in the exercise of its proper powers.”
In Judy v. Thompson, 156 Ind. 533, 60 N. E. Rep. 270, the court said: “The penalty in such cases is imposed upon grounds of public policy. The motives of the legislature are not open to judicial inquiry.
In Missouri Pac. Ry Co. v. Humes, 115 U. S. 512, 6 Sup. Ct. Rep. 110, quoted with approval in St. Louis & S. F. Ry Co. v. Mathews, 165 U. S. 1, 17 Sup. Ct. Rep. 243, Mr. Justice FIELD, speaking for the court, said: “If the laws enacted by a state be within the legitimate
• In Trice v. Hannibal & St. Joseph R. R. Co., 49 Mo. 438, the court said: “Even if we considered such liabilities to be inexpedient or illogical, we could not say that the legislature had transcended its power.”
In Illinois Cent. R. Co. v. Crider, 91 Tenn. 489, 19 S. W. Rep. 618, the court said: “The measure of the damages for failure to fence, as well as the disposition of recovery-in excess of actual compensation, was wholly within the legislative discretion.”
In considering the reasonableness of this legislation, it must be observed that the fifty per cent interest provided for by this statute is not to be collected in all cases, even though the carrier refuses to pay the claim within sixty days. The claimant may not recover the interest at all “unless he recovers judgment for a sum which fixes the principal sum of said claim at an amount greater than the amount which said common carrier had offered and tendered to the claimant in settlement of his claim before the expiration of said sixty days in which the said common carrier is required to pay such claims under the provisions of section one (1) of this act.” This provision is apparently designed to prevent the making of excessive claims. The statute may not be said to be unconstitutional because it puts the burden upon the carrier to prove an amount equal to its tender or offer, instead of making the recovery of the interest conditioned upon the proof by the plaintiff of the full amount of his claim. This would be a mere matter of detail or expediency or
. In Pensacola & A. R. Co. v. Braxton, 34 Fla. 471, 16 South. Rep. 317, this court, considering the statute allowing recovery of fifty per cent per annum damages for cattle killed by railroad companies, and for attorney’s fees, said: “Our construction of the two sections, when taken together, is that it is not necessary that the plaintiff shall recover the exact or full amount of damages as claimed in the written notice that he is required to give to the defendant as a prerequisite to his suit, in order to entitle him to the recovery of interest at the special statutory rate, and to attorney’s fees.”
The statute does not fix an arbitrary sum for attorney’s fees, but the court may allow only a reasonable attorney’s fee, not exceeding a maximum allowance on the amount recovered, if the claimant is entitled thereto.
In view of the safeguards thrown around the collection of the penalty, in view of the differences in human judgment, remembering that this question is one primarily for the judgment of legislators who live in and represent all parts of the State and who must necessarily know the conditions therein upon this matter and what penalty
The trial was had upon the plea of not guilty, and the contention that the testimony does not show that S. S. Coachman, consignee, was the agent of the plaintiff as alleged to be in the declaration, cannot be considered under this plea. This allegation is merely one of the facts stated in the inducement, and such fact whs< not put in issue by the plea of not guilty. Gainesville & Gulf R. Co. v.' Peck, 55 Fla. 402, 46 South. Rep. 1019, and the cases cited; also Atlantic Coast Line Ry Co. v. Partridge, 58 Fla., 153, 50 South. Rep. 634.
The defendant complains that the referee refused to allow it to file additional pleas during the trial of the case. The action of the referee, if error, was without injury, as the defendant was permitted to introduce evidence to support the matters set up in the additional pleas. These pleas appear to have been regarded by the trial court, and for the purposes of this case have been considered here, as equivalent to the general issue. Gainesville & Gulf R. Co. v. Peck, 55 Fla. 402, 46 South. Rep. 1019.
For the same reason, we cannot consider the contention that the plaintiff failed to give notice in writing to some officer or agent of the company before moving the stock.
As to the contention that the shipper agreed to load and unload the stock at his own risk and that the injury was due to improper loading, it may be said that the evidence on this point is conflicting, but there is evidence
Whether one of the animals was thrown down in the car and injured by the negligent manner of moving the car is a question for the referee acting as the jury, and on the evidence before us we do not see any reason for reversing his finding thereon. 2 Hutchinson on Carriers, Paragraph 639; Illinois Cent. R. Co. v. Light, 39 Ill. App. 530.
It is contended that the plaintiff is limited in the amount of his recovery, if entitled to recover at all, to the maximum sum of $75 each as the stipulated value of his horses and mules; and that the finding of the referee is in excess of that amount.
A common carrier of goods cannot legally stipulate for exemption from liability for losses occasioned by its own negligence, and all stipulations for exemption, whether gross or ordinary, are ineffectual. Summerlin v. Seaboard Air Line Ry, 56 Fla. 687, 47 South. Rep. 557. The shipper, however, by his representations or agreements as to the value of the goods, may estop himself from recovering their full value, notwithstanding they are lost through the carrier’s negligence. This would be the case when the shipper has placed upon his goods a specific value, the carrier accepting the same in good faith, as their real value, the rate of freight being fixed in accordance therewith. ’ Such a contract, fairly entered into, whereby the shipper and the carrier agree on a valuation of the property carried with a rate of 'Height based on condition that the carrier assumes liability only to the extent of the agreed valuation simply fixes the rate of freight and liquidates the damages, and will be upheld as a proper and lawful mode of securing a true proportion between the amount for which the carrier may be responsible and the Height he receives and also of protecting himself against extravagant and fanciful valuations.
In the absence of evidence to the contrary, it is to be assumed that property accepted by a carrier for transportation is taken under the responsibility cast upon it by the common law, except as modified by statute; and, if lost under circumstances rendering the carrier liable by the general rule of law, it must respond, unless it can show that there was a contract, or a special acceptance equivalent to a contract, which exempts it from the ordinary liability of common carriers. Moore on Carriers, p. 298. The transaction must amount to a contract on the subject, wherein the minds of the parties meet as in the making of other contracts. Baltimore & O. R. Co. v. Hubbard, 72 Ohio St. 302, text 316, 74 N. E. Rep. 214.
If the agreement is in writing it must be expressed in such manner and form as to be understood by a person of average intelligence, or if not so expressed it must be shown to have been explained to the shipper, unless he has such knowledge as will enable him to understand the meaning of the writing. Carpenter v. Baltimore & O. R. Co., Del. , 64 Atl. Rep. 252; See the valuable and extensive note on these questions appended to the case of Donlon Brothers v. Southern Pacific Company, 12 Am. & Eng., Ann. Cas. 1118, and comprehensive note on page 1124.
Contracts limiting the common law'liability of carriers are not favored by the courts. Exemption from liability will not be presumed, but must be found clearly expressed in the contract. Clauses inserted in a contract granting immunity to the carrier from its common law obligations will be strictly construed against the carrier. Such clauses must be clear and distinct expressions free from
As to the shipment of stock from Lakeland to Live Oak, the following clause in the bill of lading or special contract is relied upon as limiting the liability of the defendant company.
“And it is further agreed, that should damage occur for which the said company may be liable, the value at the place and date of shipment shall govern the settlement in which the amount claimed shall not exceed for a stallion or jack $-; for a horse or mule, $-; cattle, $-— each; for hogs, $—■-; and for sheep, $-.” There was no evidence that the blank places above were not filled out through mistake, and there is an entire failure to show that the shipper and the carrier in fact agreed upon any valuation of the horses or mules whatsoever. Neither was there any evidence of the value of the stock at the place and date of shipment. And the plaintiff testified without contradiction that he did not agree upon a limited valuation of his stock for shipment.
Clearly the language of the bill of lading quoted above does not in itself bind the plaintiff in the amount of his recovery, to the maximum sum of $75 each as the stipulated value of his horses and mules.
The shipment of stock from Live Oak to Clearwater was not made under any written contract or bill of lading.
The attempt is made, however, to set up a special contract as to both shipments by showing that the plaintiff paid for the transportation of his stock at a tariff of charges under which, by the published schedule of rates of the defendant and the published Eules and Eegulations of the Eailroad Commission of this State, the defendant’s
If, by a rule of the carrier, of which the shipper has notice, its liability is fixed by the rate of freight paid, and for the purpose of obtaining a certain rate of freight the shipper reports to the carrier a valuation on the goods shipped, the liability of the carrier is fixed by such agreement. If, however, the shipper has no notice of the rule of the carrier, the rule is otherwise. Klair v. Wilmington Steamboat Co., 4 Penn. (Del.) 51, 54 Atl. Rep. 694.
As the evidence is not so clear as to forbid any other inference than that the shipper consented to a specified valuation, the question of consent must be left to the referee’s determination. Taylor v. Weir, 162 Fed. Rep. 585; Carpenter v. Baltimore R. R. Co., .. Del. ..., 64 Atl. Rep. 254.
The rules and regulations of the Railroad Commission of this State prescribe the maximum valuation, in the shipments of horses and mules, of $75.00 each for a certain released rate, and, for every increase of one hundred per cent, or fraction thereof in valuation, there shall be an increase of fifty per cent in rate; but the shipper has the option to ship at his own or the carrier’s risk, and he will not be bound, in the limit of his recovery, by the payment of the released rate, unless it be shown that he
Mr. Lane, in his report for the Interstate Commerce Commission, vol. 13, p. 562, has well said: “The carrier occupies a position of strategic advantage with respect to matters of transportation. The tariff rules and regulations are of its own making; the bills of lading and shipping receipts are drafted by its own attorneys. The shipper on the other hand, has no such vantage ground. It cannot be expected that he will always be familiar with the terms of the carrier’s rate schedules and bills of lading, or that he will invariably know his legal rights. Practically he often has no choice but to accept the terms that are offered him. * * * Much of the friction that has developed between the public and the railroads in this regard is due doubtless to the fact that shippers, at the time of tendering their property for carriage, are not clearly advised of their rights, and do not understand fully the nature of the receipt which they sign. In the ordinary course of business few shippers are well informed as to the carrier’s regulations. Many shippers are in ignorance of the different rates; are given bills of lading providing for limited liability, and become aware of the limitation clause only when a claim for damages is presented. It is, therefore, peculiarly the duty of the carrier’s agent to give every reasonable assistance to shippers, in order that they may know what are the lawful and most advantageous terms upon which the carrier’s services may .be secured. The provisions of tariffs and bills of lading should be fair and unambiguous, and free from suspicion of illegality. The
The referee first allowed the sum of $200.00, as attorney’s fee, and then ordered a remittitur of $98.75, leaving an award of $101.25, or fifteen per cent on the principal sum of the claim plus the fifty per cent per annum interest. In this, the referee erred. The maxium sum allowed by the statute is fifteen per cent on any amount recovered greater than the sum of one hundred' dollars. We think the amount recovered means the amount of the claim recovered and not that amount plus the fifty per cent interest. The amount of claim recovered is made the basis of the fifty per cent interest and the attorney’s fee allowed by the statute. This is the plain meaning and intention of the statute. It provides that “when the said claimant shall bring suit and recover * * * for his claim * * * he shall be allowed the said fifty per cent per annum.” The amount of recovery relates to the disputed amount of the claim—the fifty per cent not being recovered in this sense, but allowed and fixed by the statute. Especially is this clear in that part of the-statute providing that the attorney’s fee “shall be fixed by the court, not to exceed fifteen dollars, if the amount recovered does not exceed one hundred dollars.
The referee should have awarded as attorney’s fees, not more than fifteen per cent on $450, or $67.50. The amount awarded was $101.25. If the defendant in error, therefore, within thirty days enters a remittitur for the sum of $33.75, being the excessive award of attorney’s fees, the judgment will be affirmed; otherwise the judgment stands reversed.
Concurrence Opinion
concurring.
Under the decision in the Seegers case the legislature has the power to penalize a common carrier for failure to pay damages for freight injured or lost and the amount of the penalty imposed by the act under consideration would seem to be within constitutional limits.
My doubt as to the validity of the act rests upon the failure to penalize the claimant for making an exorbitant demand. The legislation is not, however, wholly one sided. There is a special privilege granted the common carrier in this: the act suspends the right of action for sixty days and should the carrier within that time pay
I resolve the doubt in favor of the legislature and vote to sustain the act.
Plurality Opinion
concurring.
Chapter 5618, Laws of Florida, differs materially from the South Carolina statute considered in the case of Seaboard Air Line Ry Co. v. Seegers, 207 U. S., 73, and it may be that the Florida statute is not within the limitations formulated in broad general language by the Supreme Court of the United States in the Seegers case; but counsel have not argued the points that give me difficulty, and as all doubts should be resolved in favor of a legislative enactment, the validity of chapter 5618, Laws of Florida, is assented to in this case.
