Florida East Coast Railway Company, a Corporation, Plaintiff in Error, v. Thomas J. Peters, Defendant in Error, 72 Fla. 311

Shackleford, J., J., (after stating the facts as above.) —Owing to the order in which the different assignments of errors are argued and the manner in which they are presented in the several briefs filed by the plaintiff in error, the defendant in the court below, we have found it difficult to determine just what asignments of error are insisted upon and what assignments may be deemed to be abandoned for failure to argue them.

It would seem that the defendant in its main brief has erroneously designated the numbers of some of the assignments which it urges before us, which is probably accounted for by the fact that several successive sets of pleas, amended pleas and additional pleas were filed to which demurrers were interposed and the rulings upon which form the basis for a number of the assignments. The defendant filed nine pleas to the second amended declaration, to all of which, with the exception of the first which was a plea of not guilty, a demurrer was interposed and sustained.

Thereupon by leave of the Court the defendant filed its amended pleas numbered from two to nine, to all of which, with the exception of the eighth which we have copied in the foregoing statement, the plaintiff interposed a demurrer and also filed a motion to strike certain designated pleas. Before any ruling was made either on such demurrer or motion the defendant confessed the demurrer to the 2nd, 3rd and 4th amended pleas and by leave of court amended each of such pleas, with the understanding that the demurrer interposed to the first amended pleas should stand to these second amended pleas.

This demurrer was sustained to all of the pleas, and afterwards by leave of the court the defendant filed additional pleas numbered eleven and twelve, to each of which a demurrer was interposed and sustained. The first two assignments are based upon the overruling of the demurrer to the second amended declaration and the overruling of the motion to strike certain specified portions thereof, neither of which assignments is argued, therefore must be treated as abandoned.

Assignments numbered from three to twenty-five inclusive are based upon rulings sustaining demurrers to specified pleas and to motions to strike certain of them. In its main brief the defendant has a prefatory statement in which certain propositions of law are laid down which it is claimed are controlling and decisive of the case. The first of such propositions is “The plaintiff not being the owner of the crates in question at the time of the alleged delay in the transportation thereof cannot maintain this action.” The defendant begins its argument in its main brief as follows: “i.

We are confronted at the outset with the question of the right of the plaintiff to maintain this action.

This question is presented in the second and third second amended pleas filed on .September 28th, 1914, (Tr. p. 118), to which pleas a demurrer was sustained, (Tr. p. 121) and by defendant’s additional plea numbered eleven, (Tr. p. 123) to which a demurrer was sustained (Tr. p. 127). “The tenor of these pleas is that the several carloads of crates alleged to have been delayed in transportation by the fault and negligence of the defendant were not, at the time of the delivery to the defendant, nor thereafter, until the delivery of them by the defendant to the plaintiff, the property of the plaintiff, and that the defendant never at any time contracted with the plaintiff that it would carry and deliver said crates or any of them to him.

These pleas, we submit, present a good defense to this action, for it is true that if Peters did not own the crates until after they were delivered to him (which delivery, of course, was not made until after the alleged negligent delay), then the authorities are to the effect that he cannot maintain the suit.” The caption to this argument is “seventeenth, eighteenth and twenty-fourth assignments of error.” These assignments are as follows : “

(17) The court erred in sustaining plaintiff’s demurrer to defendant’s second amended plea number two (2), filed September 28, 1914.” “

(18) The court erred in sustaining plaintiff’s demurrer to defendant’s second amended plea number three filed September 28, 1914.” “

(24) The court erred in sustaining plaintiff’s demurrer to defendant’s eleventh additional plea filed May 3> I9I5-” The second amended pleas numbered two and three and the eleventh additional plea are as follows: “2nd.

And for an amended second plea to plaintiff’s second amended declaration, defendant says that it entered into a contract with the Cummer Lumber Company, a corporation, to carry and transport for it, from Jacksonville, Florida, to Peters Station, Florida, the said several cars of carrier crates in said second amended declaration alleged, and defendant says that it safely carried said several cars of carrier crates from Jacksonville, Florida, to Peters Station, and delivered the same in good order in compliance with instructions of the said Cummer Lumber Company, and defendant denies that it had any knowledge that the plaintiff would suffer any special damages whatever by reason of any delay in the delivery of said several cars of carrier crates, as alleged in said declaration. “3rd.

And for an amended third plea to plaintiff’s second amended declaration, defendant says that there was no privity of contract existing between the plaintiff and the defendant whereby the defendant owed the plaintiff any extraordinary or special duty in the transportation of the said several cars of carrier crates in said declaration alleged, and defendant says that during the period covered by the several shipments alleged in said declaration, there existed upon plaintiff’s line of road between Jacksonville, Florida, and Peters Station, Florida, an unusual and extraordinary condition of congestion in the movement of freight, and beyond the control of this defendant, which resulted in a delay in all freight transportation upon defendant’s line of road, and defendant says that it transported and delivered to the plaintiff as rapidly as it could handle the congested traffic upon its said line of road, the said several cars of carrier crates, having due regard to the laws of the United States prohibiting the discrimination by the defendant between shippers on its line of road, or in the handling of traffic upon its said road, the defendant during all of said times being an interstate common carrier of freight and passengers by rail and subject to t-he laws of the United States; and defendant denies that it had any notice that the plaintiff would suffer the special damage alleged in plaintiff’s said second amended declaration, or any damage whatever, by reason of the delay in the delivery of the said several cars of carrier crates, as alleged-in said declaration.” “n.

That the said several carloads of crate material alleged in the said declaration to have been delayed by the fault and negligence of the defendant were not at the time of the delivery of them .to the defendant nor thereafter, until the delivery of them by defendant to plaintiff, the property of the plaintiff, and that the defendant never at any time contracted with the plaintiff that it would carry and deliver the same or any of them to him.” These three assignments are the first assignments which are urged 'before us in the main brief and they are argued together, which argument is confined to- the lack of the necessary ownership of the plaintiff in the crate material to enable him to maintain this action, as is shown by the statement in such brief which we have copied above.

In its 'reply brief the defendant confines its argument to the xSth and 24th assignments as to this lack of ownership in the plaintiff, but in its supplemental brief the defendant also argues assignments numbered 3 and 4 which are based' upon the sustaining of demurrers to the defendant’s original second and third pleas to the second amended declaration, which second and third pleas are as follows: “2.

And for a further plea, the defendant says that, the cars of crate material alleged to have been delayed through the fault, delay and negligence of the defendant, were not at the time of the alleged delay, the property of the plaintiff, but on the contrary, the said crate material was purchased of and from the Drake Produce Company, who were the owners of the said crate material from the time the said material left the mill and yards of the Cummer Lumber Company, in Jacksonville, Florida, until the time it was delivered to the plaintiff at Peters Siding, Florida; and that the plaintiff was not the bailee, nor had any actionable interest in said goods for any damage that might have been caused by injuries to said goods or damage occasioned by any delay thereof. “3.

And for a third plea the defendant says that, there was no privity of contract existing between the plaintiff and the defendant whereby the defendant owed the plaintiff any extraordinary or special duty, or any. duty whatsoever to carry and safely deliver said cars of crate material; and defendant says that if any duty on its behalf was owed to any one whomsoever, this duty was to the Drake Produce Company, the owner of said crate material, and not to the plaintiff.” We shall not copy the grounds of the demurrers which were addressed to these respective pleas which we are now considering, but we shall treat together the assignments based upon the sustaining of such demurrers, confining ourselves to the argument made by the defendant in support thereof as to lack of ownership of the plaintiff.

We have examined all of the authorities cited, by each of the parties litigant in their several briefs concerning these assignments, as well as a number of others, but we shall not undertake a review and analysis of them, which would be not only quite tedious but comparatively unprofitable. We shall content ourselves with referring only to such authorities as, we think, are in point and helpful.

After a somewhat extended investigation, the clearest and most satisfactory discussion which we have found concerning the law as to who is the proper party plaintiff to bring an action against a carrier for the loss of or injury to goods entrusted to it for transportation is in Sections 397 to 400 inclusive on pages 940 to 945 of 4 R. C. L. As is well said in

section 397, this question “seems to have disturbed the judicial mind in England at a very early date and has since resulted in considerable confusion among the authorities generally. That the real owner, whether consignor, consignee, or neither of these, as for instance, a bailor of the consignor, may sue for such a loss or injury on proof of title is well established, and the later English doctrine seems to be that an action can be maintained only by such owner.

In this country the point has been variously determined though perhaps there is not such a great conflict when the facts of the cases are taken into consideration as would at first seem. * * * The question, however, that has been provocative of most discussion has been as to whether consignor or consignee is the person to sue for a loss, injury, or nondelivery of goods.” In sections 398 and 399 is discussed the respective rights of the consignee and consignor to maintain the action and in

section 400 an attempt is made to state “the true doctrine as to proper party plaintiff,” wherein it is said: “A study of the circumstances under which a right of action is given to the consignee and consignor will lead to at least one conclusion, namely, that where the consignor has sued, the courts seem generally to have held that he was a proper party and could maintain his action, and where the consignee has sued, they also seem to have generally sustained him. Hence, the apparent confusion in courts as to just who is the proper party plaintiff.

However, be it said, the real conflicts are not numerous, and many of the apparent differences of judicial opinion and most of the confusion springing therefrom are the result of fallacious and illogical reasoning, due largely to the fact that in such cases the courts have treated the question from the standpoint of the relation existing between the shipper and consignee in reference to the ownership and right of possession of the property, instead of considering the true question of the relation the carrier sustains to each of these parties respectively, an element heretofore considered.

Any difference or diversity of interest that 'may arise between the consignor and consignee can in no respect concern the carrier so long as it is protected against responding for the property more than once. The ownership may be general and unqualified, or special and limited; the right of possession may be absolute or contingent; or there may be a special contract for the transportation of the goods; in any one of these instances the interest would be sufficient on which to found an action in the absence of the assertion of a superior right in another.

The true premise on which to base an injury as to the proper party plaintiff is, therefore, that both the consignor and the consignee may have an interest in the goods or their safe transportation in which event either may sue; but the success of the demand and claim of one apparently entitled to possession as against the carrier will relieve the carrier from further responsibility even to one having a better right.” It is true that the discussion in these sections of the work cited is primarily as to who is the proper party plaintiff to bring an action against a carrier for the loss of or injury to goods entrusted to it for transportation and only incidentally is the question treated as to who is the proper party plaintiff in an action against a carrier for the negligent delay in the transportation and delivery of goods, which is the point presented to us for consideration.

These two questions are not the same, but such a close relation exists between them that certain principles are applicable to each alike. Thus on page 860 of 3 Ency. of PI. & Pr. it is stated that there can be no difference in principle in actions against a carrier for the loss of or injury to goods and actions for the negligent delay of goods as regards the form of action and the proper parties. Practically all the authorities which have been cited to us by each of the respective parties relate to the loss of or injury to goods which have been entrusted to a carrier for transportation.

Whatever may be the points of difference between the two classes of action, in an action for negligent delay in the transportation and delivery o'f goods, as well as in an action for the loss of or injury to goods, in determining who is the proper party plaintiff the facts of the case should be considered and the relation which the carrier sustains to each of the parties, the consignor and the consignee. We have held that the consignee has a right of action against the carrier for the negligent delay of goods. See Williams v. Atlantic Coast Line R. Co., 56 Fla. 735, 48 South. Rep. 209, 24 L. R. A. (N.

S.) 134, 131 Amer. St. Rep. 169. We have also held that the consignor.might maintain an action against a carrier for negligent delay in transporting goods. Fornel v. Florida East Coast R. Co., 65 Fla. 102, 61 South. Rep. 194, and Aultman v. Atlantic Coast Line R. Co., 71 Fla. 276, 71 South. Rep. 283.

We have likewise held: “A bailee has such special property in the goods intrusted to him that he may maintain an action for damage thereto, so a factor, a broker, a warehouseman, a carrier or any person employed to perform a service in respect to the goods of another with which he is intrusted for that purpose, may maintain an action for the recovery of them, or for any damage done them while in his charge.” Atlantic Coast Line R. Co. v. Partridge, 58 Fla. 153, 50 South. Rep. 634. As is readily apparent, our own holdings in these cited cases are in line with the statement in 4 R. C. L.

section 400, which we have copied above. As. is also stated in

section 398 of that work: “However, it is generally found stated in the books that the consignee is prima facie the person entitled to sue for an injury to or loss of a shipment of goods, and this principle holds true whether or not in the particular jurisdiction the strict view is entertained that the owner alone can bring an action, since it is a presumption of law that on the delivery of goods to a common carrier the title thereto vests in the consignee, and this presumption the carrier has a right to rely on, in the absence of express notice from the consignor to the contrary.

Indeed, where the property is received on an unconditional and unrestricted consignment, the carrier not only may, but must, treat the consignee as the absolute owner until he receives notice to the contrary.” As is further stated in such section: “It has been held, however, that the consignee of goods may sue the carrier for losses he has sustained through negligent delay in their transmission, although he refuses to accept them because not sooner delivered and notwithstanding the fact that title may have been retained by the consignor.” In support of this statement is cited Clute v.

Chicago, Rock Island & Pacific Ry. Co., 83 Kan. 333, 111 Pac. Rep. 431, 30 L. R. A. (N. S.) 1071, which is a well-reasoned case. We take therefrom the following excerpt: “Ordinarily the right of action for delay or damages is in the consignee. 6 Cyc. Law & Proc. pp. 510, 511. In Savannah, F. & W. R. Co. v. Commercial Guano Co. 103 Ga. 590, 593, 30 S. E. 555, 556, it was held that where, by reason of injury to the goods in transit, the consignee refuses to receive them, the consignor may sue; but this does not negative the right of the consignee to recover for any loss on his part.

The court said: Tn the event of liability by the carrier, the only question which remains for determination is whether or not the plaintiff, who sues, has been damaged, and, if so, to what extent.’ Much artificial and technical reasoning has been employed to determine the proper plaintiff in an action of this sort. The consignor has been allowed to recover for the benefit of the consignee (6 Cyc. Law & Proc. p. 513, note 91), and the consignee for the benefit of others having an interest (6 Cyc. Law & Proc. p. 511, note 84). These refinements are not in harmony with the spirit of the Code.

Neither the consignor nor the consignee can be said to be a stranger to the transaction. The' carrier has notice of the interest of each, and, if either suffers an injury through its fault, he should be permitted to obtain redress in his own name in a direct action against the wrongdoer. This is the effect of the decision in Missouri P. R. Co. v. Peru-Van Zandt Implement Co. 73 Kan. 295, 6 L. R. A. (N. S.) 1058, 117 Am. St. Rep. 468, 85 Pac. 408, 87 Pac. 80, 9 A. & E. Ann.

Cas. 790, where it was held that an agent to whom his principal sent goods for sale might recover for his commissions lost through the negligent delay of the carrier.” We would add that, in referring to the spirit of the Code, obviously

Section 5618 of the General Statutes of Kansas (1909) is meant, which provides that “Every action must be prosecuted in the name of the real party in interest, except as otherwise provided,” &c. Of the same import is our statute,

section 1365 of the General Statutes of 1906, Compiled Laws of 1914: “Any civil action at law may be maintained in the name of the real party in interest. This shall not be deemed to authorize the assignment of a thing in action not arising out of contract.

An executor, administrator, trustee of an express trust (including a person with whom or in whose name a contract is made for the benefit of another, or when expressly authorized by statute), may sue without joining with him the person for whose benefit the action is prosecuted. “By amendment the nominal plaintiff may be stricken out and the case may proceed in the name of the use plaintiff.” Concerning this statute we held in Woodbury v. Tampa Water Works Co., 57 Fla. 249, 49 South.

Rep. 556: “The purpose of the statutory provision that 'any civil action at law may be maintained in .the name of the real party in interest,’ is to relax the strict rules of the common law so as to enable those directly interested in, but not parties to, a contract, to maintain an action for its breach; and the statute should be so applied as to accomplish its statutory purpose.” Even if it be true, as is said in a note on page 944 of 4 R. C. L., and in a note on page 617 of 64 L. R.

A., that “Notwithstanding the common statutory provisions requiring actions to be brought by the real party in interest, nearly all the cases in regard to carriers seem to be determined on common law principles,” we do not see how that would sustain the contention of the defendant, since the common law rule was that “an action for a tort must in general be brought in the name of the person whose legal right has been infringed.” 15 Ency. of PI. & Pr. 517 and 719.

As we have already seen, as a general rule, the consignee is prima facie entitled to bring an action.for the loss of or injuryto goods or for negligent delay in their delivery, since it is a presumption of law that on the delivery of goods to a common carrier the title vests in the consignee. See the discussion in Griffith v. Ingledew, 6 Sergeant & Rawls, (Pa.) 429, 9 Amer. Dec. 444; Southern Express Co. v. Armstead, 50 Ala. 350; Madison, Indianapolis and Peru R. Co. v. Whitesel, 11 Ind. 55; Tebbs v. Cleveland, C. C. & St. L. Ry. Co., 20 Ind. App. 192, 50 N. E. Rep. 486.

Of course, it is true that “One having no property or interest in the goods cannot sue in tort a carrier for his breach of duty.” Edgerton v. Chicago, R. I. & P. R. Co., 240 Ill. 311, 88 N. E. Rep. 808, but, as we have already seen, in order to maintain an action against a carrier, either ex contractu or ex delicto, the plaintiff does not have to be the absolute owner of the goods. If the plaintiff has a special interest therein and his legal rights have been invaded, that would entitle him to maintain the action. As was said in Perkins Co. v. American Exp. Co.,. 199 Mass. 561, 85 N. E.

Rep. 895, “The consignee may maintain an action against the carrier for a breach of duty imposed by law.” That the law imposes the duty upon a carrier to transport and deliver to the consignee goods which have been entrusted to it within a reasonable time there can be no question. See 4 R. C. L. Sec. 206 on page 737; 1 Michie on Carriers, 904 and authorities there cited; Vicksburg & M. R. Co. v. Ragsdale, 46 Miss. 458.

As is said in 1 Moore on Carriers (2nd ed.) page 289, “The liabilities of a carrier depend not only on his contract, but also on obligations imposed by law; and an action may be brought either on the contract or for negligence or damage to person or property, as the case may be.” Also see Central Trust Co. v. East Tennessee, V. & G. Ry. Co., 70 Fed. Rep. 764. In Williamsport Hardwood Lumber Co. v. Baltimore & Ohio R. Co., 71 W. Va. 741, 77 S. E.

Rep. 333, it was held: “A consignee of lading under a contract of shipment by a common carrier has a beneficial interest therein, entitling him to sue for and, upon proper proof, recover damages for loss or injury thereto, or for unreasonable and negligent delay in delivery.” See 6 Cyc. 510, and authorities cited in the notes. We would also refer to Parker Buggy Corporation v. Atlantic Coast Line R. Co., 152 N. C. 119, 67 S. E. Rep. 251; Deaver-Jeter Co. v. Southern Railway, 95 S. C. 485, 79 S. E. Rep. 709; Robinson & Martin v. Houston & T. C. Ry. Co., 105 Tex. 185, 146 S. W. Rep. 537; Missouri Pac. Ry. Co. v.

Peru-Van Zandt Implement Co., 73 Kan. 295, 85 Pac Rep. 408, 6 L. R. A. (N. S.) 1058, 117 Amer. St. Rep. 468, 9 Ann. Cas. 790. Interesting discussions of this vexed question, with citations of authorities will also be found in 3 Hutchinson on Carriers (3rd ed.) sections 1304 to 1320; 1 Michie on Carriers, sections 809 to 811, and

section 958; 3 Ency. of PI. & Pr. pages 824 to 834. As is said in

Section 958 of Michie on Carriers, “The carrier has notice of the interest of both the consignor and consignee, and if either suffers an injury through the delay, he should be permitted to obtain redress in his own name in a direct action against the carrier.

The consignee is always presumed to possess the necessary ownership until the contrary is shown.” It would appear from the allegations in the declaration in the instant case that the consignee is the party who has been damaged by the negligent delay of the carrier in the transportation and delivery of the crates, with which damages the consignor has no especial concern, therefore the consignee is not only the proper party plaintiff in this action but “the real party in interest” within the intent and meaning of our statute,

section 1365 of the General Statutes, which we have copied above. In International Ocean Telegraph Co. v. Saunders, 32 Fla. 434, 14 South. Rep. 148, 21 L. R.

A. 810, we held: “The person to whom a telegram is sent can maintain an action for whatever legal damage that results to him from the negligence of the company in its transmission or delivery, where the message shows that he is interested in it, or that it is for his benefit, or that damage will result to him from such negligence.” It seems to us that this principle would apply with like force to a consignee to whom goods had been shipped and who had suffered special damages by reason of the negligent delay of the carrier in the transportation and delivery of the goods entrusted to it for the consignee.

It should be kept in mind that this is not an action ex contractu, but an action ex delicto brought by the consignee against the carrier for the recovery of damages which the consignee claims to have sustained by reason of the failure of the carrier to discharge a specified duty and to fulfil an obligation which the law casts upon the carrier. Reading the declaration and the pleas now under consideration in the light of the authorities which we have cited, it is obvious that the contention of the defendant that the plaintiff in the instant case is not entitled to maintain this action has not been sustained.

It is also obvious from what we have said that we are of the opinion that no error has been made to appear to us in any of the several rulings which we have been considering, therefore the assignments based thereon which have been argued before us must be held to have failed. We have devoted considerable time and thought to the investigation and discussion of the plaintiff’s right of action for the reason that greater stress has been laid upon that question by the defendant both in its several briefs and in its oral argument than upon any other point argued before us.

Assignments 14, 18, 19, 22 and 25, all of which, with the exception of the 22nd, which is based upon the sustaining of a motion to strike the sixth amended plea, are based upon the sustaining of demurrers to the amended plea numbered 6, the second amended pleas numbered 3 and 4 and the additional plea number 12.

All of these assignments are argued together by the defendant in support of the propositions, as stated in its main brief, that “A railroad company is not liable for delays in shipments provided such delays are the result of an over-press of traffic,” and that “A severe snowstorm or atmospheric condition beyond the carrier’s control will excuse a delay in shipping where the carrier is free from negligence.” The 18th assignment which is based upon the sustaining of a demurrer to the second amended plea numbered 3 was copied above, as was also such plea, in our discussion of the plaintiff’s right of action, so there is no occasion to copy such plea again, though we shall again consider the 18th assignment, since the defendant has seen fit to argue it again in support of the two propositions which we have just copied.

The second amended plea numbered 4, the sixth amended plea and the 12th additional plea are as follows: “4th.

And for an amended fourth plea to plaintiff’s second amended declaration, defendant says that it did not, at or before the time defendant received from said Cummer Lumber Company, at Jacksonville, Florida, the said several cars of -carrier crates in said declaration alleged, to be delivered to the plaintiff at Peters Station, Florida, have any knowledge that the plaintiff would suffer the special -damage alleged in said declaration, or any damage whatever, by reason of the delay in the delivery of said carrier crates, by reason of any of the said causes alleged in said declaration, nor did this defendant have any knowledge at the time of the receipt by this defendant of the said several cars of carrier crates, or at any time during the several periods between the time of the receipt by this defendant of the said several cars of carrier crates and their delivery to the plaintiff; that the plaintiff did not have on hand a sufficient amount of carrier crates to meet his reasonable demands; and defendant alleges that it was during all of said time an interstate carrier of passengers and freight and subject to the laws of the United States with reference thereto-, and further says that by the laws of the said United States this defendant is prohibited from discriminating between shippers upon its line of road in the carriage and delivery of freight, and defendant alleges that during the time covered by the said several shipments of carrier crates, there existed upon its line of road an unusual and extraordinary condition of congestion in the movement of freight, beyond the control of defendant, and defendant alleges that it transported the said several cars of carrier crates from Jacksonville, Florida, to Peters Station, Florida, as promptly as, and at the earliest possible date it could so do without discriminating in the handling of said freight in favor of the said plaintiff and against other patrons of its said road.

Wherefore defendant says that the plaintiff should not have and recover from the defendant the said special damages in said declaration alleged.” “6th.

And for an amended Sixth Plea to Plaintiff’s Amended Declaration, defendant says that during the time of alleged delay in the transportation of the said several cars of carrier crates from Jacksonville, Florida, to Peters Station, Florida, as alleged in plaintiff’s amended declaration, the trains of the defendant operating upon its line of road between Peters Station and- Jacksonville, were operated and controlled by means of telegraphic communications transmitted by the employees of the defendant to the train crews of the several trains operating upon the line of the defendant’s road between the points aforesaid; that the system of appliances for transmitting telegraphic communications to and from the various stations on the line of defendant’s road was adequate and successful, under the usual climatic and electrical conditions of the earth and atmosphere, to properly and speedily handle the traffic upon the road of the defendant, and that the same was properly installed and maintained at all times during the period hereinbefore referred to, and defendant used all care and diligence to maintain said telegraphic service in a proper working condition; but defendant says that during theTime of the alleged delay in the transportation of the said several cars of carrier crates in plaintiff’s amended declaration alleged, there existed throughout that portion of the State of Florida through which defendant’s line of road ran and through which territory it was necessary for defendant to transport said several cars of tomatoes, a peculiar and unknown condition of natural forces, climatic, electrical or otherwise, which operated upon the wires, instruments and appliances used by the defendant in transmitting train orders to the crews of the several trains upon its said line of road, in a peculiar and unknown manner, during the hours approximately from eight o’clock at night to eight o’clock in the morning, causing a failure of the telegraphic instruments, wires and appliances for the transmission of telegraphic train orders along the line of defendant’s road, to transmit said telegraphic train orders, by reason whereof it became and was impossible for defendant to promptly and with dispatch move the several trains and cars of freight from place to place along its said line of road, and the said delay in the transportation of the said several cars of carrier crates from Jacksonville, Florida, to Peters Station, Florida, in plaintiff’s amended declaration alleged, was due to said climatic, electrical or other unknown cause of nature, and was

an act of God, over which this defendant had no control, although it used every endeavor so to do, and to promptly transport said several cars of carrier crates from Jacksonville aforesaid to said Peters Station; and defendant says that said delay was not caused by any failure upon its part to use every endeavor to promptly transport said cars of carrier crates with dispatch; that by reason of the causes aforesaid it became impossible for defendant to operate its said freight trains throughout a large portion of the period hereinbefore referred to by reason of the failure of telegraphic service along its said line of road for the causes aforesaid, and its said freight trains became stalled at various times and places upon its said line of road, not at junction points where train crews were available, and defendant was compelled by reason of the laws to permit its train crews the necessary period of rest, no matter where said train crew happened to be, thereby causing great confusion, congestion and delay in the transportation of the said several cars of carrier crates in plaintiff’s amended declaration alleged, and thereby causing great confusion, congestion and delay of all trains upon defendant’s line of road, and defendant says that the delay in the transportation of the said several cars of carrier crates in plaintiff’s declaration alleged, was occasioned solely by the congestion aforesaid on defendant’s line of road due to said climatic, electrical and other unknown causes of nature that made the telegraphic train service along the line of defendant’s line of- road impossible to operate, and was beyond the control and prevention of this defendant; and defendant says that the plaintiff had knowledge of such congested condition of defendant’s line of road and the cause thereof before the deliver}' to the defendant for transportation of the several cars of carrier crates in plaintiff’s amended declaration alleged.” “12.

That at, before and during the said time when the defendant was alleged in said declaration to have, by its fault and negligence, delayed the transportation and delivery of the said cars of crate material, the defendant- had and used a roadbed, and all facilities and equipment necessary and adequate for the transportation of such freight and passengers as normally and usually came to it for transportation and delivery, and such as it had any reason to apprehend would come to it for transportation and delivery, during the time mentioned in the declaration; but that before and during said time there was delivered to it for transportation on its line of road an amount of freight very largely in excess of any amount which had ever been delivered to it theretofore, during the existence of large passenger travel, and very largely in excess of any amount which the defendant had any reason to believe would be delivered, and very largely in excess of the capacity of its equipment aforesaid.

That there was also passenger travel on said line of road largely in excess of the normal travel thereon and unprecedented and such as the defendant had no reason to foresee or provide for.

That during said time, there existed atmospheric or other conditions along the line of defendant’s road between Jacksonville and Peters Siding which so affected the telegraph line by which its trains were run as to result in the inability of the defendant to run its trains during a large part of each day, and that the delay in the movement of trains thus produced not only lessened efficiency of all its equipment so that it was unable to transport with promptness any freight (including the crate material mentioned in the declaration) but by the operation of the laws of the United States upon defendant (which avers itself to be now and at said time an Inter-state carrier, and its trains to be now and at said time in Inter-state commerce), prohibiting the use of train crews after sixteen hours continuous service, necessitated the lying still for many hours of each freight train, and that the said causes could never have been foreseen by the defendant, and that they alone produced the delay, if any, complained of in the declaration.” We have examined all the authorities cited by each of the parties concerning these assignments, as well as many others, but shall content ourselves with referring to and discussing only such authorities as we have found of service.

Before taking up these assignments for discussion we would call attention to what we have several times said to the effect that there must be a limit to pleading and as to the judicial discretion vested in the trial judge in permitting additional or new pleas to be filed by a defendant, after pleas previously filed by him have been adjudged to be defective or insufficient. See Franklin Phosphate Co. v. International Harvester Co., 62 Fla. 185, 57 South. Rep. 206, 28 Ann. Cas. 1247, and Hooker v. Forester, 53 Fla. 392, 43 South Rep. 241.

If not over-indulgent to the defendant, the court, by permitting the defendant to file several successive sets of pleas would seem to have afforded the defendant ample opportunity to set up in a proper manner whatever defense it might have to the action brought against it. Even so, if the trial judge by sustaining demurrers to or motions to strike the pleas, or any of them, upon which rulings these assignments are predicated, thereby prevented the defendant from making any defense which under the law it was entitled to make, we must so declare and determine whether or not reversible error was thereby committed.

We have several times had occasion to discuss the object of judicial proceedings, the functions performed by pleadings and what should characterize them. See Seaboard Air Line Ry. v. Rentz & Little, 60 Fla. 429, 54 South.

Rep. 13, wherein we held, “The pleadings in an action at law are designed to develop and present the precise points in dispute and they should be characterized with certainty, clearness and conciseness.” We have also uniformly held that “Any pleading, whether at law or in equity, is to be most strictly construed against the pleader thereof, and this principle applies with especial force to a plea which is in the nature of a confession and avoidance, and where such plea has on the face of it two intendments, it must be construed most strongly against the party who pleads. it.” Atlantic Coast Line R. Co. v.

Beazley, 54 Fla. 311, 45 South. Rep. 761, where prior decisions of this court will be found cited. In his concurring opinion in Atlantic Coast Line R. Co. v. Benedict Pineapple Co., 52 Fla. 165, text 176, 42 South. Rep. 529, text 533, the writer discussed the three kinds of certainty in pleadings to which we would now refer, especially the excerpt from 1 Tidd’s Prac. 451. Also see Andrew’s Stephen on Pleading page 384; 31 Cyc. 215; Spencer v. Southwick, 9 John (N. Y.) 314; Van Ness v. Hamilton, 19 John. (N. Y.) 349.

As was held in the case last cited, referring to pleas in justification, “A plea in bar of the plaintiff’s action, must be certain to a common intent; it must be direct and positive in the facts set forth, and must state them with all necessary certainty.” It was also held therein that “A plea which professes to be an answer to the whole declaration, but omits to answer a material part, is bad, on demurrer.” Another well recognized rule is that a pleading must not be double. See Andrew’s Stephen on Pleading; 1 Chitty on Pleading (16th Amer.

Ed.) 249. 558; Gould on Pleading, pages 405, 406; 7th Ency. of PI. & Pr. 238.

As is said in Gould on Pleading, 405, 406; “As to duplicity in the pleadings which follow the declaration, the rule of the common law is that every plea must be simple, entire, connected and confined to a single point, i. e., a single ground of complaint or defense,” and, as is said in 7 Ency. of PI. & Pr. 238, “A plea which contains more than one independent fact, or sets of facts, either of which alone is a sufficient answer to the allegations of the declaration, is bad for duplicity, whether the defense is in bar, or in abatement, or in both.” In Bemis v.

State, 3 Fla. 12, text 16, this court said: “It is one of the first rules of pleading, that ‘pleadings must not be double, and a plea that contains within itself several distinct answers is bad.’ ” Before proceeding to examine these special pleas in the light of the principles enunciated in the above cases, we deem it advisable to treat the contention of the plaintiff that there was no necessity for the filing of such special pleas and, therefore, it was improper to do so, for the reason that the defendant could have availed itself of all the matters of defense thereby attempted to be set up under the plea of not guilty.

It is true, as is stated in 3 Hutchinson on Carriers (3rd ed.) page 1589, that, in an action in tort against a carrier for a breach of duty in the transportation and, delivery of goods, the carrier must plead according to the rules of the common law, unless such rules have been changed by statute, and “all that will be generally required will be a plea of the general issue of not guilty, under which the carrier may avail himself of almost all matters of defence; and it has, therefore been thought that it is seldom advisable to resort to a special plea.” We had occasion to deal with this contention in Atlantic Coast Line R.

Co. v. Crosby, 53 Fla. 400, text 432, 43 South. Rep. 318, text 328, wherein we stated that this common law principle of pleading had been changed by Rules 71 and 72 of the Rules of Circuit Court in Common Law Actions, which rules were adopted by this court and became effective on the first day of June, 1873, will be found prefixed to 14 Fla. and are as follows: “71.

In actions for torts, the plea of Not Guilty shall operate as a denial only of the breach of duty or wrongful act alleged to have been committed by defendant, and not of the facts stated in the inducement, and no other defence than such denial shall be admissible under that plea; all other pleas in denial shall take issue on some particular matter of fact alleged in the declaration.” “72. All matters in confession and avoidance shall be pleaded specially, as in actions on contract.” We shall not repeat what we said in the Crosby case, but would refer to our discussion and the authorities, there cited.

See also Andrew’s Stephen on Pleading, 238 to 240. We think that since the adoption of these Rules 71 and 72 there can be no question of the right of a defendant in an action on the case to file special pleas in the nature of confession and avoidance and that, if he would avail himself of the benefit of certain matters of defense, he must do so. Such special pleas were filed, together with the plea of not guilty, by the defendant, in an action on the case, in Gulf Coast Transportation Co. v. Howell, 67 Fla. 508, 65 South. Rep. 661, 70 Fla. 544, 70 South.

Rep. 567, and a demurrer was interposed to some of such special pleas which was sustained and we discussed the assignments of error based thereon, upon the second writ of error. It is still further contended by the plaintiff that a defendant in such an action cannot file a plea of not guilty and also special pleas, and Bell v. Niles, 61 Fla. 114, 55 South. Rep. 392, is cited in support of this contention.

It is evident that the defendant has misconceived the effect of our holding in this case, which was an action of replevin, and we held therein: “A defendant may specially plead a former adjudication, if he sees fit to do so, but he may not so specially plead it in connection with a plea of the general issue, since a former recovery may be shown in evidence, under a plea of the general issue, as well as pleaded in bar.” The reason for this holding, as is stated plainly in the opinion, is that a defendant may show in evidence a former recovery either under a plea of not guilty or under a special plea and that he has his election as to which plea he will file, but that he should not be permitted to file both pleas, as such a course would unnecessarily encumber the record and tend to embarrass the trial.

Section 1454 of the General Statutes of 1906 provides: “All pleas shall be sworn to, either by the defendant or his agent or attorney. But it shall be no objection to any plea that it is contradictory to any other plea filed by the same party in the same cause.” . While

Section 1455 provides: “The defendant may plead as many matters of fact as he may deem necessary to his defense.” It is true that requiring all pleas to be sworn to and at the same time permitting contradictory pleas to be filed is somewhat of an anomaly and has occasioned some discussion in this court. See Sanford v. Cloud, 17 Fla. 532, and Buesing v. Forbes, 33 Fla. 495, 15 South. Rep. 209. Be that as it may, it would seem that the plea of not guilty in the instant case and the special pleas under consideration are not really inconsistent with each other, as was held in Buesing v. Forbes, supra.

Also see Barnes v. Scott, 29 Fla. 285, 11 South. Rep. 48, and Gill v. Graham, 54 Fla. 259, 45 South. Rep. 845. Under the provisions of the two statutes which we have copied above and in the light of the discussion in the cited cases, we are of the opinion that the defendant was not precluded from filing special pleas together with the plea of not guilty. We must now determine whether or not the special pleas under consideration are open to the attack made upon them.

It is obvious that all these pleas fall within that class of pleas in confession and avoidance designated as “pleas in justification or excuse,” the effect of which is “to show that the plaintiff never had any right of action, because the act charged was lawful.” Andrew’s Stephens Pleading, 266.

As is said in 4 Ency. of PI. & Pr. 666, “A plea in justification or excuse admits the facts alleged by the plaintiff, but in effect denies that the plaintiff had at any time a good cause of action, either because the conduct of the defendant is justified in law, or because he is excused from liability in the particular case through some act or conduct of the plaintiff. This is also termed an avoidance in law.” See also 1 Tidd’s Practice 643. As is also said in 4 Ency. of PI. & Pr. 671: “The following rules must be carefully considered by the pleader: First.

All matters in confession and avoidance must be pleaded specially. Second. The plea must confess the facts pleaded to. The plea must avoid, and the avoidance must be pleaded co-extensive with the confession.” It is further true of such a plea, as is true of all pleas, that it “must be an answer to the whole of what is adversely alleged.” Andrew’s Stephens Pleading 275. Do the pleas in question measure up to the foregoing requirements ?

Taking up these pleas in the order in which they were filed, the first is the amended sixth plea, which was the second attempt to set up such a defense, a demurrer having been sustained to the original sixth plea. On reading this plea we are impressed with its prolixity, which vice is discussed and discountenanced in Van Ness v. Hamilton, 19 Johns. (N. Y.) 349, text 371. It would also seem to be lacking in certainty and clearness. See Seaboard Air Line Ry. v. Rentz, 60 Fla. 429, 54 South. Rep. 13; 2 Saunders on PI. & Ev. 634, 635.

It will also be observed that it professes to answer the entire declaration, which consists of 31 counts; if it should be found to answer only some of such counts, it is demurrable. Van Ness v. Hamilton, supra, and 2 Saunders on Pl. & Ev. 649. As we have already said, the declaration claims damages by reason of delay in the transportation of 30 carloads of crate material, each of the first thirty counts being drawn with reference to a single shipment and the 31st count, which we have copied in the statement, being drawn to include all of the shipments.

Turning to this last count, we find that it alleges that the 30 cars containing such crate material consigned to the plaintiff were delivered to the defendant at Jacksonville on dates ranging from the 28th day of February to the 27th of March, 1911. Even if we assume that the matters set up in such plea would constitute a good defense to an action for delay in a single shipment, can it be said that such matters constitute a good defense for delay in 30 separate shipments ranging from the 28th day of, February to the 27th of March? We do not think so.

It will be further observed that such plea avers that the “peculiar and unknown condition of natural forces, climatic, electrical or otherwise, which operated upon the wires, instruments and appliances used by the defendant in transmitting train orders to the crews of the several trains upon its said line of road, in a peculiar and unknown manner, during the hours approximately from eight o’clock at night to eight o’clock in the morning, causing a failure of the telegraphic instruments, wires and appliances for the transmission of telegraphic train orders along the line of defendant’s road, to transmit said telegraphic train orders, by reason whereof it became and was impossible for defendant to promptly and with dispatch move the several trains and cars of freight from place to place along its said line of road, and the said delay in the. transportation of the said several cars of carrier crates, * * * was due to said climatic, electrical or other unknown cause of nature, and was

an act of God over which this defendant had no control.” The plea further avers that as a consequence of being unable to use its telegraph lines for the transmission of messages to its several train crews, directing the movement of its trains, traffic became very much congested and delayed, and “that the delay in the transportation of the said several cars of carrier crates in plaintiff’s declaration alleged, was occasioned solely by the congestion aforesaid on defendant’s line of road due to said climatic, electrical and other unknown causes of nature that made the telegraphic train service along the line of defendant’s line of road impossible -to operate, and was beyond the control and prevention of this defendant; and defendant says that the plaintiff had knowledge of such .congested condition of defendant’s line of road and the cause thereof before the delivery to the defendant for transportation of the several cars of carrier crates in plaintiff’s amended declaration alleged.” We have examined with great care the case of International & G.

N. Ry. Co. v. Haynes, 3 Tex. Civ. App. 20, 21 S. W. Rep. 622, the principal case relied upon by the defendant in support of the validity of this plea, wherein it was held: “1. A common carrier is not liable for a delay in delivery of freight where such delay resulted from causes beyond the carrier’s control, and the carrier exercised due care for the protection and preservation of the property. “2.

Where such delay was caused by atmospheric conditions, rendering the telegraph wires unavailable, so that the employes in charge of the train could not receive orders, it was beyond the carrier’s control and excusable.” We might concede the correctness of this holding and the cogency of the reasoning employed in the opinion, but we do not think that the contention of the defendant is supported thereby. As the opinion clearly shows, only a single shipment was involved in the cited case, while 30 shipments are involved in the instant case.

Even if, as the plea avers, the climatic, electrical or other unknown causes,. which prevented the use of its telegraphic service by the defendant to direct the movements of its trains, continued through a period of about 30 days, it is averred that such disturbance was approximately only from the hours of 8 o’clock P. M. to 8 o’clock A. M., so the defendant had about 12 hours every day in which it could use its telegraph lines.

We might further concede the correctness of the further proposition advanced by the defendant, that “A severe snowstorm or other atmospheric condition beyond the carrier’s control will excuse a delay in shipping where the carrier is free from negligence,” which finds support in 4th Elliott on Railroads,

section 1555 on page 324, which is cited by the defendant. The plea in question does not aver that the delay was occasioned by “a severe snowstorm,” though, perhaps, the existence of atmospheric conditions, due to climatic, electrical or other unknown causes, which prevented the use of telegraph lines for the transmission of messages for approximately 12 hours every day during a period of about 30 days, is even as rare and wonderful a phenomenon in Florida as a snowstorm, since flakes or flurries of snow have been known to fall in some portions of this State for a short time.

Conceding further that this disturbance of telegraphic communication occasioned congestion of freight along the defendant’s line of road and therein produced delay in the transportation of freight, and “that the plaintiff had knowledge of such congested condition * * and the cause thereof before the delivery to the defendant for transportation of the several cars of carrier crates,” that of itself would not justify the defendant or excuse its delay, which is alleged in the declaration.

The plea does not aver that the defendant notified the plaintiff before or at the time it received the several shipments of the circumstances likely to occasion delay, or that it obtained the plaintiff’s consent, either express or implied, to the delay. See Joynes v. Pennsylvania R. Co., 235 Pa. St. 232, 83 Atl. Rep. 1016, Ann.

Cas. 1913D 964, wherein it was held: “When an emergency arises and a carrier unexpectedly has more business than it can accommodate, and it receives goods without notice to the shipper of the probable delay, and fails to obtain his assent, express or implied, to the delay, it is bound to transport the goods within a reasonable time, notwithstanding the emergency.” This case is cited to us by the defendant. As is said in 4 R. C.

L. 742-43 : “But when an emergency does arise and more business is suddenly and unexpectedly cast on a carrier than he is able to accommodate, unless the carrier declines to receive the excess offered some shippers must necessarily be delayed.

In such a predicament it becomes the duty of the carrier to inform the shipper of the facts at the time of the shipment or as soon thereafter as they become known and thereby afford him the option of acquiescing in the delay or seeking some other line of transportation; otherwise, if the carrier receives goods without notice to the shipper of the circumstances likely to occasion delay, or fails to obtain his assent, express or implied, to the delay, he will be bound to transport them within a reasonable time, notwithstanding such emergency.” Also see the authorities there cited, especially Daoust v. Chicago, R.

I. & P. R. Co., 149 Ia. 650, 128 N. W. Rep. 1106, 34 L. R. A. (N. S.) 637, and Yazoo & M. V. R. Co. v. Blum Co,. 88 Miss. 180, 40 South. Rep. 748, 10 L. R. A. (N. S. ) 432, and the case notes in the two cited volumes of L. R. A. We would also refer to 8 Thompson on Negligence,

section 6606; 2 Hutchinson on Carriers (3rd ed.)

section 496; 1 Moore on Carriers (2nd. ed.) 360; 1 Michie on Carriers, pages 619, 624, 625; 6 Cyc. 444; Thero v. Missouri Pac. Ry. Co., 144 Mo. App. 161, 129 S. W. Rep. 266; Russell Grain Co. v. Wabash R. Co., 114 Mo. App. 488, 89 S. W. Rep. 908; Missouri, K. & T. Ry. Co. v. Stark Grain Co., 103 Tex. 542, 131 S. W. Rep. 410; Nelson v. Great Northern Ry. Co., 28 Mont. 297, 72 Pac. Rep. 642; Unionville Produce Co. v. Chicago, B. & Q. R. Co., 168 Mo. App. 168, 153 S. W. Rep. 63. Also see our discussion in Seaboard Air Line Ry. v. Rentz, 60 Fla. 429, 54 South.

Rep. 13, which was an action for the failure and refusal of a carrier to transport freight. In other words, this “act of God,” as the. defendant characterizes it, which continued for a period of practically a month, resulting in an interference with and disturbance of the defendant’s use of its telegraph lines and thereby producing a congestion of freight, which caused the delay of the several cars of crate material consigned to the plaintiff, was peculiarly within the knowledge of the carrier, with all of the attendant consequences.

Under such existing circumstances the defendant might well have been justified in refusing the several shipments. The defendant did not see fit to pursue this course, but continued to receive such shipments from time to time during a period of 27 days. By so doing, in order to escape liability to the plaintiff for delay in the transportation and delivery of such shipments, it became the duty of the defendant to notify the plaintiff of such existing conditions.

The mere general averment in this plea “that the plaintiff had knowledge of such congested condition of defendant’s line of road and the cause thereof before the deliver}' to the defendant for transportation of the several cars of carrier crates” is not sufficient. See especially Missouri, K. & T. Ry. Co. v. Stark Grain Co. supra. For the reasons which we have given we are of the opinion that this plea does not measure up to the requirements which we enumerated and does not set forth a sufficient defense, therefore no 'error was committed in sustaining the demurrer which was interposed thereto.

We would add that we have carefully examined the cases of Yazoo & M. V. R. Co. v. Blum, 89 Miss. 242, 42 South. Rep. 282, Yazoo & M. V. R. Co. v. McKay, 91 Miss. 138, 44 South. Rep. 780, and Perkins v. Cleveland, C. C. C. & St. L. Ry. Co., 183 Ill. App. 531, which are cited and relied upon by the defendant, but see nothing therein to cause us to change the conclusion which we have announced above. Having found that the demurrer was properly sustained to this plea, it becomes unnecessary to pass upon the assignment based upon the sustaining of a motion to! strike such plea.

Next in the order of filing come the second amended 3rd and, 4th pleas, each of which we have copied above. There seems to be no occasion for discussing the assignments based upon the sustaining of demurrers thereto at any length. We think that the principles which we have laid down in our discussion of the sixth amended plea are sufficient to dispose of such assignments adversely to the contention of the defendant.

This is in an action on the case, and, as we have previously said, it is immaterial that “there was no' privitjr of contract existing between the plaintiff and the defendant,” as is averred in the second amended 3rd plea. Not only, in our opinion, are these two pleas insufficient as a defense for the reasons stated in the foregoing discussion, but we think that these pleas are further objectionable and defective in that they are clearly duplicitous.

It is true that duplicity in a pleading was not a ground for general demurrer, under the rules of common law pleading, but could be reached only by a special demurrer. It is further true that in this State special demurrers have been abolished by statute, so that the proper course to pursue in order to reach duplicity in a pleading is by a motion to strike such pleading or for the compulsory amendment thereof.

Even so, we think that the court would have been warranted in striking- these pleas out of its own motion, as tending to embarrass the trial of the cause, therefore no reversible error was committed in sustaining the demurrer to them. It would also seem to be true that these two pleas are infected with such vices as to be open to attack either by a motion to strike out or by demurrer. Southern Home Ins. Co. v. Putnal, 57 Fla. 199, 49 South. Rep. 922. This brings us to the consideration of the 12th additional plea, which we have also copied above.

A reading- of this plea discloses that it is another attempt to set up as a defense the same matters in regard to a large excess of traffic and disturbance of the use of the telegraph lines by the defendant, and it is averred therein that these two causes “alone produced the delay, if any, complained of in the declaration.” Much of what we said in our discussion of the sixth amended plea is alike applicable to this plea, and it is clearly insufficient under the authorities there cited, so no additional discussion seems to be necessary.

It follows from what <we have said that we are of the opinion that these assignments, the 14th, 18th, 19th, 22nd and 25th, have not been sustained, no reversible error having been made to appear to us in any of the several rulings upon which they are based. Another assignment of error argued by the defendant is the 16th, which is to the effect that the trial court erred in sustaining the demurrer to' the amended 9th plea, which plea is as follows : “9th.

And for an Amended Ninth Plea to Plaintiff’s Amended Declaration, defendant says that in and by the contract of carriage entered into by and between the defendant and the Cummer Lumber Compan}'-, for the transportation of the said several cars of carrier crates in said amended declaration alleged, it was therein and thereby contracted by and between the defendant and the said Cummer Lumber Company as the agent of the plaintiff, as follows: “ ‘No. 8.

Claims for loss or damage must be made in writing to this company within ten days after arrival of the goods at their place of ultimate destination in case of fruit, vegetables, and other perishable articles, and within thirty days after arrival at ultimate destination in case of other freight, and unless claims are so made this company shalll not be liable.’ “And defendant says that the plaintiff, or sáid Cummer Lumber Company did not, within thirty days after the arrival of said several cars of carrier crates at Peters Station, Florida, make claim to this defendant in writing of any loss or damage suffered by reason of any delay in the delivery of the said several cars of carrier crates.

AVherefore defendant says that the plaintiff should not have and recover from this defendant the said damages in said amended declaration alleged.” The defendant would seem to lose sight of the distinction between actions for the loss of or injury to goods and actions for damages occasioned by negligent delay in the transportation and delivery of goods, to which last named class the instant action belongs. Even if we concede that the contract set out in the plea be valid in actions for the loss of or injury to- goods, which we are not now called on to determine, but would refer to Summerlin v.

Seaboard Air Line Ry., 56 Fla. 687, 47 South. Rep. 557, 131 Amer. St. Rep. 164, 19 L. R. A. (N. S.) 19, such contract has no applicability to an action for special damages occasioned by delay in transportation. Morrow v. Missouri Pac. Ry. Co., 140 Mo. App. 200, 123 S. W. Rep. 1034, and authorities there cited. Also see 2 Michie on Carriers,

section 1423; Baltimore & Ohio Express Co. v. Cooper, 66 Miss. 558. 6 South. Rep. 327, 14 Amer. St. Rep. 587; 4 Elliott on Railroads (2nd, ed.)

section 1512, pages 229, 230. The discussion and authorities cited in Houtz v. Union Pac. R. Co., 33 Utah 175, 93 Pac. Rep. 439, 17 L. R. A. (N. S. ) 628, to which is appended a valuable case note, may also prove of service. We have examined all the authorities cited by the defendant in behalf of this assignment and are of the opinion that they do not support its contention. No error was committed in sustaining the demurrer to this plea. The foregoing assignments are the only assignments based upon the pleadings which have been urged before us that, we think, merit treatment.

We now direct our attention to the assignments based, upon the evidence which are numbered from 26 to 58 inclusive and are in the main argued together by the respective parties, though not all of these assignments are insisted upon.

We have airead}» extended this opinion to a greater length than we desired for the reason that, in view of the conclusion which we have reached as bo the proper disposition of the case, it seemed advisable to settle the different questions presented by the assignments on the pleadings, therefore we cannot discuss these assignments on the admission and, exclusion of evidence except in the miost general way. We must content ourselves with setting forth certain principles which we conceive to be controlling as applied to the evidence adduced upon the issues made by the pleadings in this particular case.

In order to understand the application of these principles it is essential to keep in mind just what the issues are. We recapitulate.

This is an action on the case for the recovery of damages alleged to have been occasioned the plaintiff by reason of the negligent delay by the defendant in the transportation of 30 separate shipments in carload lots of crate material, which cars were delivered to the defendant on its line at Jacksonville on divers specified days, ranging from; the 26th or 28th day of February, to the 27th day of March, 1911, covering a period of about a month, consigned to the plaintiff at Peters’ Siding or Peters’ Station, also on the defendant’s line of road, which crate material was purchased and ordered by the plaintiff for the purpose of packing and shipping a large crop of tomatoes grown by the plaintiff.

See the first and last counts of the declaration copied in the- prefatory statement to this opinion. As we have already seen, the defendant made repeated but unsuccessful attempts to set up as a defense certain matters in the nature of -confession and avoidance. The only pleas left standing were the plea of not guilty and a plea directed only to the last count of the declaration which set up certain matters in mitigation or certain elements of damages claimed in such count. These two pleas are also copied in the prefatory statement.

The case was submitted to the jury upon the issues made by the declaration with its 31 counts and these two pleas.

As is said by the defendant in one of its briefs, “under the general issue it could only deny damage, and the delay in the shipment of goods, a charge, which, under the facts of the case, it could not and did not attempt to- deny.” Upon the calling of the -case for trial, the plaintiff produced and offered in evidence a written stipulation, signed by the respective counsel for the parties litigant, to the effect that a large number of letters and telegrams described therein might be offered in evidence without further proof than their introduction, “saving to each party all just exceptions to the admissibility of all such documents as evidence.” Such paper contained a further stipulation as to the issuance of 30 bills of lading by the defendant to the Cummer Lumber Co. each for a carload of crate material consigned to the plaintiff, one of which was introduced in evidence, it being agreed that the other bills of lading were identical with it, except as to the date and initial number of each car.

Then follows a list of the dates of the bills of lading, with the car initial and number and date each car was shipped and the respective dates of the delivery of the same to the plaintiff.

Such paper also1 contains the following stipulation : “It is also stipulated and agreed that at the beginning of the tomato, shipping season in the year 19x1 the plaintiff had on hand, ready for use, crate material left over from the preceding season to the amount of four thousand six hundred crates, and that the said plaintiff shipped :by freight and express over defendant’s railroad (on the dates set forth therein) the number of crates of tomatoes shown in the following schedule, to witWe deem it unnecessary to copy the

schedule of shipments. After the introduction of this stipulation the plaintiff then proceeded to offer in evidence the letters and telegrams referred to therein, to the introduction of all of which, it would seem, the defendant interposed certain specified grounds of objection, the overruling of which forms the basis for a number of assignments of error.

As will already have been observed, und,er the issues as made by the pleadings, and also in view of the stipulation entered into by the parties, the salient features of which we have just set forth, all that it was incumbent upon the plaintiff to prove was the amount of damages which he ■had suffered as a proximate result of the delay by the defendant in the transportation of the 30 shipments of ■crate material. Of course, such damages had to be proved by competent evidence.

There is a conflict of authority as to the principles which control the measure of damages in actions ex delicto as to the elements proper to be considered, as distinguished from actions ex contractu... See & R. C. L. 453. This court has committed itself to the doctrine that the rules governing the assessment of damages are the same in tort as in contract, except where a tort is committed under such circumstances as to' warrant the allowance of exemplary damages. See Western Union Tel. Co. v. Merritt, 55 Fla. 462, 46 South. Rep. 1024, 127 Amer. St.

Rep. 169, wherein we held as follows: “The rule in this State as to the measure of damages in actions against telegraph companies for negligence in the transmission or delivery of messages is that formulated in Hadley v.

Baxendale, 9 Exch. 341; ‘Where two parties have mad,e a contract, which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be either such as may fairly and substantially be considered as arising naturally, i. e. according to the usual course of things from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract, as the probable result of the breach of it/ This rule is applied here whether the particular action is ex contractu or ex delicto.” It is true that the cited case was an action against a telegraph company, but we applied the same rule in Williams v.

Atlantic Coast Line R. Co., 56 Fla. 735, 48 South. Rep. 209, 24 L. R. A. (N.S.) 134, 131 Amer. St. Rep. 169, which was an action ex delicto by the consignee against a common carrier for damages occasioned by negligent delay in the transportation of freight, wherein we held as follows: “Only such damages may be recovered as were contemplated or might reasonably be supposed to have entered into the contemplation of the parties to the contract of carriage.

If the owner of the goods would charge the carrier with any special damages, he must have communicated to the carrier all the facts and circumstances of the case which do' not ordinarily attend the carriage or the peculiar character and value of the property carried,, for otherwise such peculiar circumstances cannot be contemplated by the carrier.” In addition to these cited cases, also see the discussion of the applicability of the principle laid down in Hadley v. Baxendale, 9 Exch. 341, in the following opinions of this court: Brock v. Gale, 14 Fla. 523, 14 Amer. Rep. 356; Western Union Tel. Co. v.

Hyer, 22 Fla. 637, 1 Amer. St. Rep. 222; Western Union Tel. Co. v. Wilson, 32 Fla. 527, 14 South. Rep. 1, 37 Amer. St. Rep. 125, 22 L. R. A. 434; McMillan Brick Co. v. Western Union Tel. Co., 60 Fla. 131, 53 South. Rep. 329, 29 L. R. A. (N.S.) 891. We call attention to the fact that in several of these cited cases concurring and dissenting opinions, were filed which it might prove profitable to examine. It may be true, as was held in Bourland v. Choctaw, O. & G. Ry. Co., 99 Tex. 407, 90 S. W. Rep. 483, 3 L. R. A. (N.S.) 1111, 122 Amer. St.

Rep. 647, “The rule requiring notice, at the time of making a contract for the delivery of property, of the existence of peculiar conditions under which special damages are likely?- to arise from .its breach, as essential to create liability of the promisor for such damages, is not a rigid or universal one, or applicable to all cases in which such damages are sought.” The discussion of this point in the opinion is interesting. Also see the authorities cited therein, especially Wilson v. Newport Dock Co. 1 L. R. Exch. 177, text 189, wherein Chief Baron Pollock said concerning the rule laid down in Hadley v.

Biaxendale: “It is quite true, as remarked by Sir James Wilde, in Gee v. Lancashire and Yorkshire Ry. Co. 6 H. & N. 211, 30 L. J. Ex. 11, that the case is not applicable to, and does not decide every case. No rule, no formula could do< that.” Also see Sir James Wilde’s opinion in Gee v. Lancashire & Yorkshire Ry. Co., supra; Rogan v. Wabash Ry. Co., 51 Mo. App. 665, text 667; Missouri, K. & T. Ry. Co. v. Belcher, 89 Tex. 428, 35 S. W. Rep. 6; 3 Hutchinson on Carriers (3rd ed.) 1367. Be all this as it may.

In the instant case the plaintiff alleges that the defendant, prior to the receipt of the several shipments for transportation to the plaintiff had notice or knowledge of such special circumstances as to require expedition in the shipments, and contends that the evidence adduced sustains this allegation and entitles the plaintiff to recover special damages for negligent delay.

The purpose of the plaintiff in offering the ■documentary evidence to which we have referred, consisting of sundry letters and telegrams, which were admitted over the objection of the defendant, was to show that the defendant had notice or knowledge of such special facts and circumstances as to bring the case within the requirements laid down by this court in the several cases which we have cited.

Upon an examination of such documentary evidence, we find that the first letter introduced was one from the plaintiff to an official of the defendant, dated the 23rd day of May, 1910, which was a request to extend the sidetrack at the plaintiff’s siding to- double its present capacity for the reasons therein stated. All the subsequent letters introduced to and from the plaintiff and officers, agents and attorneys of the defendant from May, 1910, up to the 6th of March, 1911, relate to the extension of this sidetrack and contain nothing in regard to the shipment of crate material.

It is true that the plaintiff states that he was doubling his planting- and would need additional room, to handle the next season’s crop of tomatoes, and in reply to a letter from one of the defendant’s officers the plaintiff stated that he estimated that he would have over 400 acres planted in tomatoes.

While this documentary evidence was not in the nature of knowledge or notice to the defendant of any special damages which the plaintiff might sustain by reason of d,elay by the defendant in the transportation of crate material shipped over the defendant’s line to the plaintiff, we are not prepared to declare that error was committed in admitting it. Although incomplete in itself, it tended to throw light upon the preliminary transactions and negotiations taking place between the plaintiff and the defendant and to explain the subsequent notice which was given to the defendant.

It is doubtless true, as is stated, in 4 R. C. L. 746, that “common carriers are supposed to take notice of such .natural events as are familiar to ordinary people.

They will be held to a knowiledg-e of seedtim/e and harvest, and of the general customs relating- thereto in the territory where they do business.” Even so, knowledge by a carrier of the fact that a shipper on its line has about 400 acres planted in tomatoes would not carry with it the additional knowledge when such tomatoes would be ready for the shipment thereof to begin or when the shipper would need crates, the number thereof that he would need or that a few days’ delay in the transportation thereof would result in special damages to such shipper.

As a matter of fact the plaintiff himself testified that “The maturing season for tomatoes came on sooner than usual in 1911, on account of the warm weather—earlier by ten days or two weeks.” So far as is disclosed by this documentary evidence, the first notice which the defendant had in regard to delay in the transportation of crate material to the plaintiff and that such delay was occasioning him special damages was contained in the following telegrams : “

(24) March 16th, 1911. “F. W. Kirtland, G. F. A., F. E. C. Ry. St. Augustine, Fla. “Just in receipt of following message from T. J. Peters. Five cars crates past due. When can I expect them. Packing stopped. Answer. Will you kindly advise us what reply to' make to- Mr. Peters. “Paid. Chg. D. P. Co. Drake Produce Co. “(25) 45 pd. D. L. 3,16,1911. “J. P. Beckwith, St. Augustine, Fla. “Two cars crates due here last Saturday and Monday not here yet. Am out. Packinghouse shut down, tomatoes ripening. My orders for equipment not filled. Heaviest shipping coming' on. Cannot handle my crop with this kind of service.

What would you advise. Answer. “Thos. J. Peters 11-05 Am.” It cannot be contended that this notice relates back to a timie prior to shipments of crates which were claimed to be past due. Subsequent telegrams were also introduced in regard to- delays in shipments, but there is no occasion to copy or discuss them. The plaintiff w-as introduced as a witness in his own behalf and permitted to testify, over the objection of the defendant, as to what amount of fertilizing- -material he had used in making his crop- of tomatoes and of what such material consisted. This was clearly not pertinent to the issues.

The plaintiff further testified to a conversation which he had at Miami, Fla., in February, 1911, before he began the shipment of his tomlatoes, with Mr. McDonald, an officer of the defendant, in which the following took place: “Witness mentioned to him that his crate material would have to be delivered also, or that it would, stop witness in the packing.

McDonald said ‘Where will your crate material come from,’ and witness replied, ‘From Cummer Lumber Co. at Jacksonville/ and McDonald said, ‘You need not be uneasy; we will handle that too/ Witness told him he had been losing- sleep- on that' account, and McDonald said he could go- back and sleep sound, and that they would, take care of it for him.” Even this notice would not be sufficient to- apprise the defendant of special damages which the plaintiff might suffer by reason of delay in the transportation to- him of crate material, so as to- bring the case within the requirements of the rule which this -court has adopted.

As we have held in effect, which is squarely in line with the great weight of authority: Where losses and injuries are not a necessary or a usual and ordinary but a proximate though unusual result of actionable negligence, such losses and, injuries may be compensated for by the recovery of special damages.

But the negligent party cannot lawfully be made to respond in damages for losses that do not usually result from or could not ordinarily have been foreseen as a proximate result of a particular negligence, unless it be shown that there was knowledge or notice on the part of the negligent person that such losses would or might follow as a proximate result of a particular negligence. Unless the carrier had at or

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