Florida East Coast Ry. Co. v. Hardee, s. 64-417

• Decision Date: 08 September 1964
• Docket Number: Nos. 64-417,64-418,s. 64-417
• Citation: Florida East Coast Ry. Co. v. Hardee, 167 So.2d 68 (Fla. App. 1964)
• Parties: FLORIDA EAST COAST RAILWAY COMPANY, a Florida corporation, Appellant, v. Walter W. HARDEE, Appellee.
• Court: Florida District Court of Appeals

Page 68

167 So.2d 68

FLORIDA EAST COAST RAILWAY COMPANY, a Florida corporation, Appellant, v. Walter W. HARDEE, Appellee.

Nos. 64-417, 64-418.

District Court of Appeal of Florida, Third District.

Sept. 8, 1964.

Rehearing Denied Oct. 7, 1964.

Knight, Smith, Underwood & Peters and Jackson L. Peters, Miami, for appellant.

Frates, Fay & Floyd and Richard H. W. Maloy, Miami, for appellee.

Before CARROLL, HORTON and HENDRY, JJ.

HORTON, Judge.

This is an action under the Federal Employers' Liability Act, Sec. 1 et seq., 45 U.S.C.A. § 51 et seq., by an employee of appellant to recover damages for personal injuries sustained while in the performance of his duties as such employee.

These interlocutory appeals are from two orders of the circuit court, i.e., (1) denying appellant's application for change of venue and (2) denying appellant's request to present evidence on the issues raised by the application and the appellee's traverse.

The appellant contends that the court abused its discretion in (1) denying the application for change of venue and (2) refusing to hear evidence relating to that issue.

Although the appellant recognizes that the trial judge is vested with a degree of discretion in granting or denying an application for change of venue under Chapter 53, Fla.Stat., F.S.A., nevertheless it appears to rest its arguments upon an absolute duty to grant such a change. If the appellant's position in this regard were correct, then the trial judge would have no discretion in the matter of such application and would be performing a mere ministerial duty in ordering the transfer of the cause to another jurisdiction. We do not interpret the decisions or the statute as requiring such result. Section 53.02, Fla.Stat., F.S.A., and Haddock v. State, 141 Fla. 132, 192 So. 802, 809.

The appellant's application for change of venue was supported by affidavits and numerous newspaper articles appearing in the local press, as well as the substance of numerous radio and television broadcasts. In addition, there was attached a chart showing the percentage of jurors eligible for jury service who were reportedly connected with the union which was then on strike against appellant. The application for change of venue was noticed for hearing before the trial judge by the appellant approximately one week prior to the day of hearing. Prior to and at the date of the hearing it does not appear that appellant subpoenaed or attempted to subpoena witnesses to testify in its behalf or that it...