58 Fla. 153 | Fla. | 1909
This is an action of trespass on the case instituted by the defendant in error against the plaintiff in error, in the Circuit Court for Jefferson County, whereby it was sought to recover damages from the defendant below for its alleged negligence in transporting and delivering a car of pears delivered by the plaintiff to the defendant at Monticello, Fla. a station on its line of road, for shipment to Pittsburg, Pa. A demurrer was interposed to the original declaration, whereupon the plain
“The court erred in admitting in evidence the account sales marked ‘Exhibit A’ over the objections of the defendant in the court below.”
We find that this assignment is based upon the admission in evidence by the referee of an account of sales covering the shipment of the pears, which the plaintiff had testified to having réceived from the consignee over the following objections interposed thereto by the defendant :
“First. It is irrelevant and improper; second, it calls for the opinion of the witness; third, it calls for hearsay evidence of the witness; fourth, it is an improper method of proving damages.”
As has been often decided by this court, general objections to evidence proposed, without stating the precise grounds of objection, are vague and nugatory, and are without weight before an appellate court, unless the evidence objected to is palpably prejudicial, improper and inadmissible for any purpose or under any circumstances.
The nest assignment argued before us is the fourth, which is as follows:
This requires a consideration of all the evidence, and we have gone carefully over it hut decline to set it out or even to attempt to make a synopsis of it, for the reason that we see no useful purpose to be subserved thereby. The defendant contends that it is not liable for the reason that the evidence shows that the primary cause of the damage to the fruit was the improper loading of the car by the shipper. But upon this point we find that the evidence is conflicting, and we are of the opinion that there is ample evidence to support the finding of the referee. This being true, we must follow the settled practice of this court and refuse to disturb it or to reverse the judgment for that reason. See Seaboard Air Line R. Co. v. Scarborough, 52 Fla. 425, 42 South. Rep. 706, and authorities there cited; Wilson v. Jernigan, 57 Fla. 277, 49 South. Rep. 44; Southern Home Ins. Co. v. Putnal, 57 Fla. 199, 49 South. Rep. 922. It has been frequently held by this court that “the finding of a referee upon conflicting evidence is entitled to the same weight as a verdict of a jury; and it will not be -set aside by this court, unless the preponderance of evidence is such as to justify the inference that the finding was based upon influences other than a due consideration of the evidence.” See Camp v. Hall, 39 Fla. 535, 22 South. Rep. 792, and authorities thereiú cited. This assignment has not been sustained.
The third assignment is the next one presented to us: “The court below should have required a remittitur for a greater amount than was made.” It is contended by the defendant in support thereof that, as the evidence discloses that the plaintiff was the owner of only a portion of the fruit in the car and was handling and shipping the residue as a broker, he was entitled to judgment only for the damage to that portion of which he was the owner,
The defendant demurred to this declaration, which demurrer was overruled and error assigned upon such ruling, forming the first assignment, which, as we have already said, was expressly abandoned. Even so, the question of ownership was not attempted to be raised therein. As we have also seen, only two pleas were filed, not guilty and that the damage did not occur upon the line of the defendant. If the defendant conceived the declaration to be defective in failing to sufficiently allege the ownership of the property in question it # should have raised such question by demurrer and, in the event of the same being overruled, predicated an assignment thereon and presented and argued such assignment before this court. If it conceived the declaration to be sufficient in that respect, but still wished to raise such question of ownership and the' plaintiff’s right to main
The fifth assignment, based upon the overruling of the motion for a new trial, is not argued, the defendant contenting itself with the statement in its brief that “we consider the fifth pretty well covered in the discussion of the third and fourth.” Those two assignments having failed, this assignment presents nothing for our consideration. See Bass v. State, decided here at the present term, and the authorities there cited.
We have not considered the bearing upon this case, if any, of the Carmack amendment of section 20 of the act of Congress to regulate commerce (Act Feb. 4, 1887, c. 104, 24 Stat. 386 (U. S. Comp. St. 1901, p. 3169)), passed June 29, 1906 (Act June 29, 1906, c. 3591, Sec. 7, 34 Stat. 593 (U. S. Comp. St. Supp. 1907, p. 906)), as such question has not been raised or presented to us for consideration.
Finding no reversible error, the judgment must be affirmed, and it is so ordered.