Atlantic Coast Line R. Co. v. Florida Fine Fruit Co.

• Decision Date: 21 January 1927
• Citation: 93 Fla. 161,112 So. 66
• Parties: ATLANTIC COAST LINE R. CO. v. FLORIDA FINE FRUIT CO.[*]
• Court: Florida Supreme Court

112 So. 66

93 Fla. 161

ATLANTIC COAST LINE R. CO. v. FLORIDA FINE FRUIT CO.^[*]

Florida Supreme Court, Division B.

January 21, 1927

Rehearing Denied Feb. 25, 1927.

Certiorari to Circuit Court, Duval County; Daniel A. Simmons, Judge.

Action by the Florida Fine Fruit Company against the Atlantic Coast Line Railroad Company. Judgment for plaintiff in the civil court of record was affirmed by the circuit court, and defendant brings certiorari. Judgment quashed.

Syllabus by the Court

SYLLABUS

Statute authorizing certiorari by Supreme Court does not enlarge appellate jurisdiction (Rev. Gen. St. 1920, § 3322; Const art. 5, §§ 5, 11). Section 3322, Rev. Gen. Stats. of Florida authorizes this court to issue writs of certiorari to review judgments of the civil court of record that have been affirmed by the circuit court of Duval county, but it does not enlarge the appellate jurisdiction of this court as defined by the Constitution.

Certiorari may be directed to inferior tribunals exceeding jurisdiction or proceeding illegally, if appeal or writ of error will not lie (Rev. Gen. St. 1920, § 3322; Const. art. 5, §§ 5, 11). The common-law writ of certiorari may be directed to inferior tribunals where it is shown that they have exceeded their jurisdiction, or where they have proceeded illegally, and no appeal or writ of error will lie.

Certiorari does not ordinarily review conflicting testimony, but may review substantial errors of procedure (Rev. Gen. St. 1920, § 3322). Review by certiorari does not ordinarily extend to a consideration of the probative force of conflicting testimony, but it may include substantial errors of procedure that are calculated to materially injure the complaining party.

On certiorari, if evidence affects court's jurisdiction or shows abuse of power to determine facts, or finding shows failure duly to consider evidence, or error of law, or serious misconduct, Supreme Court may take appropriate action (Rev. Gen. St. 1920, § 3322). In cases coming to this court pursuant to section 3322, Revised General Statutes of Florida, where the probative force of the evidence affects the jurisdiction of the court, or where it is so manifestly contrary to the finding that is made on it as to show a palpable abuse of the power to determine the controverted facts on the evidence, or where the finding clearly indicates that the evidence was not duly considered or an erroneous rule of law was observed in making the finding, or where there was serious misconduct involved in the finding, and material injury to the petitioner resulted therefrom, the court may, in te exercise of its sound discretion, consider such matters and take appropriate action thereon in order that the law and justice may prevail.

Railroad must furnish cars to shippers shipping by car lot railroad's obligation to furnish cars is generally determined by amount of freight carried in normal times. The law is well settled that a common carrier, by reason of its public character, is under obligation to furnish cars to shippers who ship by the car lot. The proper measure of the carriers' obligation in this matter is generally determined by the amount of freight ordinarily carried in normal times.

Carrier, not having cars or other facilities and not able to reasonably anticipate demand and make provision, is not liable for failure to supply unusual demand. Any unusual, extraordinary, or unprecedented demand on a carrier for cars or other transportation facilities in excess of its normal capacity will not impose on it the duty of complying therewith, if it has not the cars on hand at the time and could not have reasonably anticipated the demand and made provision for them.

Carrier may show inability to furnish cars without undue interference with general business or with rights of other shippers. When a common carrier is unable to turnish cars at the time demanded without suffering an undue interference with its general business or with the rights of other shippers, it may show such facts in defense of an action to hold it liable for losses occasioned by its neglect to furnish cars or other transportation facilities.

Common carrier is not required to furnish means of transportation other than it owns and uses or holds out to public on own route. Under its general public obligation, a common carrier is not bound to furnish other means of transportation than such as it owns and uses or holds out to the public on its own route for that purpose.

Whether railroad is properly equipped to supply normal demands, whether demand for cars is unprecedented and not reasonably to be anticipated, and whether cars were unavoidably out of reach held jury questions. Whether or not a railroad company is properly equipped to supply normal demands, whether there was an unprecedented demand at the time in question or one not reasonably to be anticipated, whether the railroad company was permitting its cars to be in the service of other carriers instead of using them to its own demands, or whether they were unavoidably out of reach at the time of the alleged unprecedented demand are questions for the jury to determine.

Carrier, sued for failure to perform service, may introduce published rules or contract under which service is to be performed or applicable portions thereof. The tariffs embracing the published rules, or the contract under which a service on the part of a common carrier is to be performed, or the applicable portions thereof may be properly introduced in evidence by the carrier, in a suit for damages for negligently failing to perform such service.

COUNSEL

Doggett, Christie & Doggett, of Jacksonvillo for petitioner.

P. L. Gaskins, John F. Hall, and Gary W. Alexander, all of Jacksonville, for respondent.

OPINION

TERRELL J.

The respondent, as plaintiff, sued the petitioner, as defendant, in the civil court of record for Duval county in a common-law action for negligently transporting and ventilating and for failing to provide refrigerator cars in which to transport four cars of oranges and grapefruit from Winter Haven, Fla., to Chicago, Ill., in May, 1920. A demurrer to the declaration was overruled, as was likewise a demurrer to the original, first amended, and second amended pleas. A jury was waived, and trial by the court resulted in a judgment for the plaintiff (respondent) in the sume of $2,990.40 and costs.

A motion for new tiral was denied, and appeal was taken to the circuit court of Duval county where the judgment of the civil court of record was affirmed. Motion for rehearing was denied, and, on petition of Atlantic Coast Line Railroad Company, pursuant to section 3322, Revised General Statutes of 1920 of Flordia, certiorari was directed to the circuit court of Duval county commanding it to transmit to this court a true copy of the record and proceedings in said cause, which was done in response to the said writ.

It is contended here by the petitioner, Atlantic Coast Line Railroad Company, (1) that the trial court erred in sustaining plaintiff's demurrer to its (defendant's) second amended pleas; (2) that the court erred in permitting plaintiff to introduce in evidence its several orders for refrigerator cars; and (3) that the court erred in refusing to permit the defendant to introduce in evidence the tariffs under which the shipments involved here were transported.

Against the contention of petitioner the relator, Florida Fine Fruit Company, contends that the writ of certiorari should be quashed, because (1) the grounds set forth in the petition do not present matter which may be determined on writ of certiorari; (2) there is no authority for making the function of a writ of certiorari the equivalent of a writ of error; (3) the statute attempting to give such authority in this case is unconstitutional, being in violation of section 5 of article 5, and section 11 of article 5 of the Constitution; and (4) even if it were assumed that such authority existed, no sufficient ground is shown from the petition and record to sustain the writ.

The general nature, purpose, and function of the common-law writ of certiorari has been fully discussed in former adjudications of this court. Basnet v. City of Jacksonville, 18 Fla. 523; Edgerton v. Green Cove Springs, 18 Fla. 528; Deans v. Wilcoxon, 18 Fla. 531; Jacksonville, T. & K. W. Ry. Co. v. Boy, 34 Fla. 389, 16 So. 290; Hunt v. City of Jacksonville, 34 Fla. 504, 16 So. 398, 43 Am. St. Rep. 214; Seaboard Air Line R. Co. v. Ray, 52 Fla. 634, 42 So. 714; Louisville & N. R. Co. v. Sutton, 54 Fla. 247, 44 So. 964; Ragland v. State, 55 Fla. 157, 46 So. 724; Malone v. City of Quincy, 66 Fla. 52, 62 So. 922, Ann. Cas. 1916D, 208; State v. Live Oak, P. & G. R. Co., 70 Fla. 564, 70 So. 550; Benton v. State, 74 Fla. 30, 76 So. 341; Harrison v. Frink, 75 Fla. 22, 77 So. 663; First Nat. Bank of Gainesville v. Gibbs, 78 Fla. 118, 82 So. 618; American Ry. Exp. Co. v. Weatherford, 84 Fla. 264, 93 So. 740; American Ry. Exp. Co. v. Weatherford, 86 Fla. 626, 98 So. 820. In the case at bar, our observations will be confined to the function of certiorari as affected by section 3322, Revised General Statutes of Florida 1920.

Section 5 of article 5 of the Constitution defines the appellate jurisdiction of this court. Section 11 of article 5 of the Constitution defines the final appellate jurisdiction of circuit courts in this state. To the extent that it involves the review of the proceedings of an inferior court certiorari is an appellate proceeding, but, to the extent that the subject-matter of the proceeding brought before the appellate court will not be reinvestigated, tried, or determined on the merits as on appeal or writ of error, it is an original proceeding. Benton v. State, 74 Fla. 30, 76 So....