Atlantic Coast Line R.R. v. Connell

• Decision Date: 28 July 1933
• Citation: 149 So. 596,111 Fla. 572
• Parties: ATLANTIC COAST LINE R. R. v. CONNELL et al.
• Court: Florida Supreme Court

149 So. 596

111 Fla. 572

ATLANTIC COAST LINE R. R. v. CONNELL et al.

Florida Supreme Court, Division A.

July 28, 1933

Rehearing Denied Sept. 14, 1933.

Certiorari to Circuit Court, Hillsborough County; L. L. Parks, Judge.

Action by J. L. Connell and C. D. Schultz, doing business under the name and style of Connell & Schultz, against Atlantic Coast Line Railroad. Judgment for plaintiffs was affirmed with remittitur on appeal to the circuit court, and defendant brings certiorari.

Judgment quashed with leave to enter proper judgment not inconsistent with opinion.

COUNSEL Kelly & Shaw, of Tampa, for petitioner.

Paul Pinkerton, of Tampa, for respondent.

OPINION

PER CURIAM.

Respondents recovered a judgment in a common-law action against petitioner in the civil court of record for Hillsborough county, which was affirmed with remittitur on appeal to the circuit court. Certiorari was granted from this court to review that judgment.

The declaration was on the common counts seeking the recovery of $2,224.87 with interest thereon for $1,854.05 pursuant to sections 4581 and 4582, Revised General Statutes of 1920, sections 6646 and 6647, Compiled General Laws of 1927, the validity of which has been upheld by this court. Atlantic Coast Line Ry. Co. v. Coachman, 59 Fla. 130, 52 So. 377 20 Ann. Cas. 1047.

Five errors are assigned. They are predicated on the sufficiency of the declaration, variance in the proof and the allegata the degree of proof charged, and the constitutional validity of the act on which the action was predicated as applied to the facts in this case.

On the latter point it is sufficient to say that the general validity of the act on which the action was grounded was upheld in Atlantic Coast Line Ry. Co. v. Coachman, supra. We do not think, however, that the 50 per cent. interest penalty allowed by the act is recoverable in this case. The alleged overcharge for freight from Connell to Tampa was imposed by the railroad company in the belief that Connell was a legally established station from which it had a right to make the charge. The freight shipments for which the overcharge was made moved from Connell, Fla., to Tampa, Fla., from October 1926, to April, 1927. In August, 1929, at a hearing for that purpose, the railroad commission of Florida entered its order declaring the station of Connell to be abolished and never to have been legally established. The declaration below was filed in March, 1929. From October, 1926, to August, 1929 Connell was a recognized shipping point from which the shipments in question were made under presumed legal authority.

The 50 per cent. penalty imposed by section 4582 supra (section 6647, Comp. Gen. Laws 1927), was to require prompt payment of claims for freight, baggage, or express lost...