Atlantic Coast Line Railroad v. Dexter , 50 Fla. 180 ( 1905 )

Taylor, J.,

(after stating the facts.) To EL F. Dexter, one of the plaintiffs, as a witness on his own behalf the following question was propounded: “Did you on or about the 9th day of February, 1804, deliver to the Central of Georgia Railroad Company a car load of horses and mules?” The defendant objected to this question on the ground that the written receipt or bill of lading for the stock is the best evidence of the delivery of same to the railroad company. The objection was overruled and the question allowed, which ruling is the second error assigned. The witness answered that “the Brady Union Stock Yards delivered this carload for me. We usually had them to deliver the stock.” There was no error in permitting this question. The receipt or bill of lading, if any, given by the railroad company for freight delivered to it for carriage, while strong evidence, is no better evidence of the abstract fact of such delivery than the testimony of a credible witness who knows of such delivery. No receipt or bill of lading may be issued at all, yet the fact of such delivery may exist without it, and may be testified to independently of a receipt or bill of lading for the goods delivered. Boykin et al. v. State, 40 Fla. 484, 24 So. Rep. 141.

After the defendant had introduced in evidence without objection the two “Live Stock Contracts” or bills of lading, under which it was admitted the railroad company received the stock for carriage and shipment, and had made H. F. Dexter, one of the plaintiffs, its witness, and had proved by him that he had received and ridden on a pass issued -with such contract, the plaintiffs counsel on cross-examination of said Dexter propounded to him the following question: “Were you acquainted with the terms of this bill of lading, and did you agree to the same?” To this question the defendant objected on the grounds: (1) The bill of lading has already been admitted by them to be the contract under which said stock was shipped. (2) The plaintiffs accepted the benefits of the free pass under the contract; and, (3) The railroad companies were induced to accept the said stock by the acquiescence of the plaintiffs to the terms of the said bill of lading, hence they are estopped to deny the acceptance of same. These objections were overruled and the question allowed, which ruling is assigned as error. The witness answered as follows: “I didn’t know anything about the terms of this bill of lading, neither did I agree to the same. Brady Union Stock Yards took the bill of lading. Usually they ship the stock, take the bill of lading, and then the bill of lading and pass are sent to the hotel and I know nothing about it until the bill of lading and pass get to the hotel.” The court below erred in this ruling for various reasons.

The rule is quite generally settled in the.United States that an acceptance by a shipper or his agent of a receipt oi* bill of lading containing a limitation of the carrier’s liability is binding on him when the limitation is not illegal or unreasonable. And that it is not essential to the validity of such a limitation that it be shown that the shipper was aware of it, or that he had read it, or that it had been explained to him or his attention called to it, provided the carrier made use of no improper means to prevent his noticing or objecting to it. And that every shipper is conclusively presumed, in such a case, to have read and assented to the provisions of the receipt or bill of lading given him, whether he in fact assented or not. 5 Am. & Eng. Ency. Law (2nd ed.) pp. 293 and 294, and numerous authorities there cited. The stock contract or bill of lading here inquired about had been admittedly received by the shipping plaintiffs, had been accepted and signed by their shipping agent, the Brady Union Stock Yard, and the plaintiff had admittedly received and ridden upon a free pass issued to him by the railroad company as a part of the contract of shipment, and no obstacles were shown to have been thrown in his way to prevent his fully familiarizing himself with the terms of the contract and each and every of its conditions. Under these circumstances it made no difference whether the plaintiffs ever expressly assented to the contract or not, or even read, or knew of its terms and conditions, they are fully bound thereby, and are estopped from gainsaying or repudiating it.

What is here said disposes also of the assignment of error predicated upon the ruling of the court in permitting one P. T. McGriff, a witness, and shipping agent fo'r the plaintiffs, to testify to his non-assent to, and want of knowledge of the terms and conditions of the second Live Stock Contract or bill of lading involved in the case.

The court gave to the jury the two following charges:

(1) “To plaintiffs declaration in this case the defendant has filed two pleas, the first is a plea of general issue, and the second is a special or affirmative plea. (Here the court read the pleas to the jury). Under the first plea it devolves upon the plaintiffs to prove their case by a preponderance of the evidence. If you believe from the evidence that this stock sued for was delivered to the railroad company in good condition, and that when same reached Live Oak it was injured and damaged as alleged in plaintiffs declaration then the court instructs you that the plaintiffs have made out a prima facie case, and are entitled to recover unless the defendant can show that said stock Avas injured by its own inherent viciousness, or from some other cause not the result of their negligence and for which it is not responsible.”

(2) “If you find for the plaintiffs you should fix their damage at the value of said stock after it had reached Live Oak had same been uninjured.” Both of these charges are erroneous. The first is erroneous because in the admitted contract of shipment between the parties it is expressly provided that the shipping plaintiffs or their agent assume to take care of the stock during its transportation ; in such cases the great weight of authority holds that when the shipper assumes to take care of the stock during the transportation, he has the burden of proving that the loss was the result of the defendant company’s negligence, whether the negligence consists in failing to furnish proper cars or in the transportation of the stock. The reason for this rule is thus given by ELLIOTT, C. J., in Terre Haute & L. R. Co. v. Sherwood, 132 Ind. 129, 31 N. E. Rep. 781, S. C. 32 Am. St. Rep. 239: “The effect of this agreement is to place the animals in their (the shippers) immediate custody during transportation. Their agent is to care for them and is to do the things expressly specified. The animals were not, therefore, in the exclusive custody and control of the carrier, so that the case is not within the reason of the rule that the carrier, and not the shipper, has the burden of proof because the former has all the means of explanation and excuse at hand.” The general rule referred to by Judge ELLIOTT, to which the case of a shipper assuming the care of live stock during transportation forms an exception, is the same rule that is discussed in Savannah, F. & W. Sy. Co. v. Harris, 26 Fla. 148, 7 South. Rep. 544. 5 Am. & Eng. Ency. Law (2nd ed.) p. 472, and eases cited in note 2 and p. 359 text. Our statute, Chapter 4071, Laws of 1891, does not militate against this rule, since it does not cast the burden of proof upon, or presume negligence against, the carrier until it is shown, at least, that the injury complained of was caused by the running of the locomotives, or cars, or other machinery of the defendant companyIn the case of the transportation of live stock, with the undisputed special contract before the court between the parties, admitted in this case, providing for the carriage of these animals it was error for the court to charge the jury in effect that if the animals were in good condition when delivered to the railroad company and were found to be injured on their arrival at their destination they could find for the plaintiffs unless the defendant company could show that the injury was not caused by its negligence, or was caused by the innate viciousness of the animals themselves. The burden was upon the plaintiff shippers of proving at least that the injury to the animals complained of resulted from the operation by the defendant company of its cars, or in the discharge of some other duty that devolved upon it under its contract of carriage with the shipper.

The second of said charges is erroneous because it entirely ignores the provision in the admitted contract between the parties by which, in consideration of the reduced rates at which the carriers undertook to convey the freight, the amount of damages for which the companies were to be responsible for the complete loss or injury to such stock was limited in any event to not more than seventy-five dollars per head. The validity of such provisions in freighting contracts between shippers and carriers, particularly for the carriage of live stock, is almost universally recognised, and they are binding between the parties. 5 Am. & Eng. Ency. Law (2nd ed.) p. 328, et seq. and authorities there cited. Notwithstanding this the court in this charge instructs the jury that they can assess the damage at the full value of the animals in an uninjured condition at their point of destination at Live Oak.

At the close of the evidence the defendant demurred to the evidence, but the court overruled such demurrer. This demurrer was defective in not stating all the evidence admitted thereby and was, therefore, properly overruled. Mugge v. Jackson, 50 Fla. ..., 89 So. Rep. 157. In view of the evidence disclosed to us in the record here, the court erred in denying the defendant’s motion for new trial on the ground that the verdict was not supported by the evidence. The plaintiffs failed to show when, where or how the injury occurred to his property, and failed utterly to prove any fact from which it could be presumed even that such injury occurred while such stock was in the hands of the defendant company. This being true, no case was made out against the defendant upon which a recovery could legally be had.

For the errors found the judgment of the court below is reversed at the cost of the defendant in error.

Hocker and Parkhill, JJ., concur. Shackleford, O. J., and Cockrell and Whitfield, JJ., concur in the opinion.