Payne v. Bryan

105 So. 832, 90 Fla. 174

• Court: Supreme Court of Florida
• Decided: July 23, 1925
• Status: Published

Opinions

West, C. J.

The controlling question in this case is the amount and not plaintiff’s right of recovery. The action is for loss sustained by plaintiff because of damage to cattle transported by defendant .carrier for plaintiff from Tallahassee to Tampa. That there was injury to some of the cattle, resulting in loss to the shipper, is undisputed. The jury found the fact to be as alleged, that the injury resulted from defendant’s negligence.

The bill of lading under which the shipment moved contains the following paragraph:

1 ‘ The amount of any loss or damage for which any carrier is liable shall be computed on the basis of the actual value of the property at the place and time of shipment under this contract, including the freight charges, if paid; provided, however, in all cases not prohibited by law, where a lower value than actual value has been represented in writing by the shipper or has been agreed upon or is.determined by the classification or tariffs upon which the rate is based, such lower value shall be the maximum amount to govern such computation, whether or not such loss or damage occurs from negligence. ’ ’

No value is stated in the bill of lading, which is attached to the declaration as a bill of particulars and, while not reproduced in the bill of exceptions, is several times referred to as in evidence, and essential paragraphs were quoted from in the examination of witnesses. In the record there is evidence, which was not objected to, of value at the-time of shipment of the cattle, sufficient, with interest from the date suit was instituted, to sustain the verdict. But defendant proved, by the evidence of a witness, the existence at the time of shipment of a classification and tariff promulgated by the Railroad Commission of Florida fixing a much less maximum recovery for loss of cows and calves when the rate of freight was that admittedly charged and paid in this case.

Determination of the validity of the provision of the bill of lading fixing the maximum amount of recovery, whether the loss or damage sustained results from the negligence of the carrier, is not, under the facts of this case, necessary.

No lower value than actual value was represented in writing 'or otherwise by the shipper to the carrier. The evidence shows that the agent of the carrier saw the cattle at the time of shipment and knew that they were of greater actual value than the maximum amount of recovery allowed according to the classification and tariff under which the shipment was made, but there is no proof that the shipper knew of the classification and tariff.

Whatever the rule may be elsewhere, in this jurisdiction it is established that a shipper “will not be bound in the limit of his recovery by the payment of the released rate, unless it be shown that he knew the rate paid was a released rate and there was a fair meeting of the minds of the shipper and the carrier that by payment of the released rate the recovery of the shipper would be limited to a certain maximum sum clearly agreed upon. ’ ’ Atlantic Coast Line R. Co. v. Coachman, 59 Fla. 130, 52 South. Rep. 377; American Ry. Exp. Co. v. Galt, 128 Miss. 81, 90 South. Rep. 597, 25 A. L. R. 728; Donlon Bros. v. Southern Pac. Co., 151 Cal. 763, 91 Pac. Rep. 603, 12 Am. & Eng. Ann. Cas. 1118.

In Atlantic Coast Line R. Co. v. Dexter & Conner, 50 Fla. 180, 39 South. Rep. 634, the bill of lading was put in evidence and showed a complete and unambiguous contract for a limited liability of $75 per head for mules and horses delivered to the carrier. See American Ry. Exp. Co. v. Lindenburg, 260 U. S. 584.

In Atlantic Coast Line R. Co. v. Coachman, supra, as in this ease, the bill of lading did not contain a completed contract for limited liability. The space provided for stating the amount of the agreed liability was left blank and there was no showing of an agreement, express or implied, consenting to or recognizing a limited liability of the carrier.

The judgement will be affirmed.

Affirmed.

Whitfield, Ellis, Terrell and Strum, J. J., concur.