72 Fla. 66 | Fla. | 1916
—The plaintiff in error brought suit in Circuit Court for Walton County against the defendant in error to recover damages for the loss of a mule by death, which was shipped by the plaintiff in a car loaded with other live stock over the defendant’s railroad from Horse Cave, Kentucky, to DeFuniak Springs, Florida.
The amended declaration, which was filed in May, 1913, alleged that the defendant was a common carrier of live stock by rail and that it undertook as a common carrier for a valuable consideration paid by the plaintiff to the defendant to transport from Horse Cave, Kentucky, to DeFuniak Springs, Florida, by rail, eighteen mules and five horses for the plaintiff; that the live stock was received by the defendant in good condition, and the de
The declaration alleged that the defendant was notified in writing of the claim, but had refused to pay, and the plaintiff demanded damages in a sum equal to the value of the mule and expenses of transportation and interest from the date of shipment, and fifty per cent per annum upon the principal sum, and fifteen per cent of the amount recovered as attorneys’ fees.
The defendant pleaded that it was not guilty; that the injury complained of was caused solely by the nature, disposition and inherent viciousness of the stock shipped in the car with the mule; that the damage was caused by the negligence of the plaintiff, and that the injury complained of was contributed to by the negligence of the plaintiff. And an additional plea was filed that the defendant never undertook and promised as alleged in the declaration.
On the 4th day of June, 1913, the defendant filed by leave of the court an additional plea to the declaration, which was as follows: “That the plaintiff, through its duly authorized agent, Henry Altshelter, entered into a written agreement, for a valuable consideration, with the defendant, through its duly authorized agent, J. E. Longsdon, whereby the plaintiff and the defendant agreed that should damage for which the said carrier
To this plea the plaintiff interposed a demurrer, but the record does not disclose whether this demurrer was sustained or overruled.
On the 14th day of January, 1914, the case came on for trial. A jury was empaneled and sworn, and when the plaintiff had submitted its evidence the defendant announced that it would demur to the plaintiff’s evidence. The demurrer was filed. The plaintiff joined in the demurrer, which was sustained by the court. Thereupon the plaintiff’s attorney “moved the court that he would take a non-suit,” which motion was granted and the jury ordered discharged.
About a year and a half afterwards, on July 9, 1915, the defendant moved the court for a judgment nunc pro tunc on the order sustaining the demurrer to the evidence and upon the same day the court rendered the following judgment:
“This cause coming on to be heard upon the application of defendant’s attorneys for a final judgment nunc pro tunc upon the order sustaining the demurrer to the evidence in this suit, due notice of the hearing having been given to the attorney for the plaintiff, upon considering
“It is considered and adjudged by the court that the plaintiff recover nothing in said suit, and that the defendant go without day and recover its costs, amounting to $____, and have execution therefor.
“Done and ordered at Chipley, Fla. this 8th day of July, A. D. 1915, because of the disqualification of the Hon. A. G. Campbell, Judge of the First Judicial Circuit. To which ruling of the court plaintiff excepts & exception noted & plaintiff given 60 days to present bill of exception.
" D. J. Jones,
“Judge of the Ninth Judicial Circuit of the State of Florida.”
This judgment was duly entered.
At the trial E. W. Thorpe, the president of the plaintiff company, testified that he bought the mule in Kentucky and shipped him to Horse Cave in that State, where he was put in a car of the defendant company on its tracks, which car was at the same time loaded with other stock purchased by Mr. Thorpe for his company. The witness testified that he could not say whether the agents of the railroad company were looking after the loading of the car, but there were a number of people assisting in loading and shutting the car, -that the car was loaded with five horses and eighteen or twenty mules and started from Horse Cave, Kentucky, to DeFuniak Springs, Florida. Witness said he did not agree or have any contract with the Louisville & Nashville Railroad Company in regard to the shipment of that car of stock; that he did not contract with the company or any of its agents as to the value of the stock, nor did he authorize any one else to do so; the car was loaded on February 7th, 1911; that the last
T. M. McConnell testified for the plaintiff as to the value of the mule, as to its condition upon its arrival at DeFuniak Springs, and as to its death the same night. B. C. Davis also testified as tó the mule’s condition upon its arrival at DeFuniak Springs, and as to the market value of the mule if he had been in good condition. The plaintiff’s counsel then read in evidence the deposition of
The bill of exceptions contains a recital of what then transpired. In substance it is as follows: The plaintiff announced that it rested its case, whereupon the defendant interposed its demurrer to the evidence and the plaintiff joined in the demurrer. After argument of counsel the “court announced that he thought the demurrer to the evidence would have to be sustained and asked the attorney for the plaintiff whether he desired a final judgment entered upon the demurrer or would he take a non suit.” The plaintiff’s attorney obtained leave of absence for a few minutes to examine authorities and decide what answer to make to the court’s inquiry. When the plaintiff’s attorney returned he announced to the court that he would take a non suit, to which announcement the court replied that he had a right to do so, “ordered a non suit to be entered and discharged the jury from any further consideration of the case.”
The bill of exceptions shows that on the 25th day of June, 1915, the defendant moved the court for a final judgment upon the demurrer to the evidence, which motion was opposed by the plaintiff’s counsel upon the ground that the court had given the plaintiff a right to take a non suit; that the right was secured by law and that the record showed that the proper final judgment to be entered was upon the plaintiff’s non suit. This motion came on to be heard on July 8, 1915, before the Honorable D. J. Jones, Judge of the Ninth Circuit, because of the disqualification of the Judge of the First Circuit, and resulted in the judgment hereinbefore copied in this opinion.
In support of the opposition to the motion of the defendant the plaintiff’s counsel read the affidavit of Mr. D.
The record also contains an affidavit of Hon. Daniel Campbell, who was one of the defendant’s couxisel when the suit was instituted, whose copartner, Hon. A. G. Campbell, became Judge of the First Circuit, and on account of whose disqualification the defendant’s motion for a final judgment was heard before Hon. D. J. Jones, Judge of the Ninth Circuit. This affidavit is not included in the bill of exceptions. The affidavit recites Daniel Campbell’s recollection of the transaction which occurred upon the argument oxr the demurrer to the evidence. The affidavit recites ixi substance that when the argumexit had closed the “Judge after a brief statement of the evidexice, or rather a review of the evidence, announced that he sustained the demurrer and the plaintiff’s attorney stated that he would take a non suit. Nothixig was said by the Judge as to Pltff’s Atty doing either until Judge Wolfe said demurrer would be sustained.” We think this affidavit is xiot part of the record proper, and if it was used when the motioxr for the final judgment was heard should have been included in the bill of exceptions. The affidavit, however, seems xiot to be inconsistent with the recital in the bill of exceptioxis to the effect that the court announced that he thought the demurrer would have to be sustained, whereupon plaintiff took a non-suit.
To the final judgment entered in July, 1915, the plaintiff took a writ of error, and assigns six errors.
The sixth assignment of error attacks the ruling of the court on the motion of the defendant for a final judgment. The plaintiff contexids that he had taken a non-suit, that the law allowed him to do so at that stage of the proceedings. The defendant contends that after the de
If the court was correct in sustaining the demurrer to the evidence the point will have to be decided; but if on the other hand the court erred in sustaining the demurrer to the evidence, it becomes immaterial whether the plaintiff took a non-suit or forfeited his right by too long delay.
The question of the sufficiency of the evidence to establish a prima facie case for the plaintiff is presented by the third and fifth assignments of error, which are that the court erred in forcing the plaintiff to take a non-suit by announcing that the demurrer to the evidence would have to be sustained, and that the court erred in entering the final judgment. The fourth assignment of error presents substantially the same question as the sixth assignment. The second assignment of error which is that the court erred in overruling the plaintiff’s demurrer to the “additional plea to the amended declaration,” must fail because the record as pointed out above shows no such order.
We will consider the third and fifth assignments first. The declaration was one in case for the tortious act of the defendant in negligently injuring the plaintiff’s mule while transporting it from one point to another. It was alleged that the defendant as a common carrier of live stock undertook this service for a valuable consideration, but that by its negligence in transporting the mule it was bruised and injured so that it died and was a total loss to the plaintiff. To this declaration the defendant pleaded
In the case of Summerlin v. Seaboard Air Line Ry., 56 Fla. 687, 47 South. Rep. 557, the court speaking through Mr. Justice Parichill said: “Whenever a railroad company therefore receives cattle or live stock and undertakes to transport the same for hire, such company assumes the relation of a common carrier and becomes chargeable with the duties and obligations which are incident to that relation, except so far as such duties and responsibilities may legally be modified by special contract.”
A common carrier of live stock has at common law the duty of furnishing proper facilities for the loading, transportation and delivery of the live stock which it undertakes to carry. Not only must suitable means be provided by the carrier for the loading and unloading of live stock, but it must during the transportation of the stock take such other precautions as reasonable prudence suggests to insure a safe delivery. See 5 Am. & Eng. Ency. of Law (2nd ed.) Title “Carriers of Live Stock;” Atlantic Coast Line R. Co. v. Dexter, 50 Fla. 180, 39 South. Rep. 634; Savannah, F. & W Ry. Co. v. Harris, 26 Fla. 148, 7 South. Rep. 544; 4 R. C. L. pp. 949, 969, 972; Atlantic Coast Line R. Co. v. Rice, 169 Ala. 265, 52 South. Rep. 918; Atlantic Coast Line R. Co. v. Coachman, 59 Fla. 130, 52 South. Rep. 377. The duties and responsibilities of a common carrier of live stock however may legally be modified by special contract. Summerlin v. Seaboard Air Line Ry., supra. And where the railroad company relies upon a special contract to relieve it of its common law liability it must plead and prove such contract. But in the absence of a contract limiting the liability of a common carrier of live stock its liability is that of an insurer against such loss or damage as does not
In this case it appears that the shipper did not accompany the stock during the transit, but they were in the sole custody of the carrier from the time of their delivery to it until the arrival at DeFuniak Springs; that all the stock were in good condition and sound when received by the carrier for transportation, that they were properly loaded and suitable bedding prepared for them and the car securely closed; that upon arrival at DeFuniak Springs the
A demurrer to evidence admits the truth of all the testimony and of all the reasonable deductions that can be made therefrom, and should set forth all the evidence intended to be admitted and the evidence is taken most strongly against the demurrant. Wilkinson v. Pensacola & A. R. Co., 35 Fla. 82, 17 South. Rep. 71; Fee v. Florida Sugar Mfg. Co., 36 Fla. 612, 18 South. Rep. 853; Holland v. State, 39 Fla. 178, 22 South. Rep. 298; Mugge v. Jackson, 50 Fla. 235, 39 South. Rep. 157; Skinner Mfg. Co. v. Wright, 51 Fla. 324, 41 South. Rep. 28; Myers v. Hodges, 53 Fla. 197, 44 South. Rep. 357; Comforter v. City of Apalachicola, 63 Fla. 113, 58 South. Rep. 28.
Taylor, C. J., and Shackleford, Cockrell and Whitfield, JJ., concur.