Florida East Coast Ry. Co. v. Anderson

• Decision Date: 23 May 1933
• Citation: 148 So. 553,110 Fla. 290
• Parties: FLORIDA EAST COAST RY. CO. v. ANDERSON et al.
• Court: Florida Supreme Court

148 So. 553

110 Fla. 290

FLORIDA EAST COAST RY. CO. v. ANDERSON et al.

Florida Supreme Court

May 23, 1933

Certiorari to Circuit Court, Dade County; Uly O. Thompson, H. F Atkinson, and Worth W. Trammell, Judges.

Action by Mrs. J. H. Anderson, joined by J. H. Anderson, her husband, against the Florida East Coast Railway Company for damages. To review the judgment of the circuit court affirming the judgment of the civil court of record conditional upon the entering of a remittitur in the amount of $100 as attorney's fees for the plaintiff, the defendant brings certiorari.

Writ quashed.

TERRELL and BROWN, JJ., dissenting.

COUNSEL Robert H. Anderson, of Jacksonville, and Loftin, Stokes & Calkins, of Miami, for petitioner.

Patterson & Knight and W. Clinton Green, all of Miami, for respondent.

OPINION

HARRISON Circuit Judge.

This cause is before this court upon a writ of certiorari to the circuit court of Dade county, Fla., to review the judgment of that court affirming, with order for remittitur, the judgment of the civil court of record of Dade county recovered against the petitioner and in favor of the respondent in a civil suit for damages sustained to certain baggage while stored in the warehouse of the petitioner at Miami, Fla.

On the 7th day of February, 1927, declaration was filed in the trial court.

The petitioner suggests the following questions as being involved in the consideration of this cause:

I. 'Should the judge of the civil court of record, at the request of the defendant, at the conclusion of all of the evidence, have directed the jury to return a verdict for the defendant, when the trial court evidently proceeded on the theory that the defendant was liable as a common carrier, and the evidence disclosed that the relation of the defendant to the damaged parcel of baggage was that of warehouseman, and the baggage was damaged by rainwater which entered the baggage room through glass windows broken at night by débris blown against the window on the outside during the second greatest storm in the history of the Miami weather office, and the employees of the company, fourteen in number, did everything possible to avert damage to several hundred trunks in the baggage room, the plaintiff's trunk being one which she allowed to remain in the baggage room from 11:20 on the morning of October 17, 1926, to the night of October 19, when the great storm devastated the Miami district?'

In answering this question, reference to the declaration discloses that the same contains but one count, and, while there are many allegations referring to the petitioner as a common carrier and relating to the obligations to the respondent as such common carrier to transport the respondent and her said baggage, the negligence complained of is clearly alleged to have occurred at a time while respondent's said baggage was in storage in petitioner's baggage room at Miami. The specific negligence charged is that petitioner, by the careless and negligent manner in which it kept and maintained the said trunk and its contents, great quantities of water were allowed to damage said trunk and contents, the said trunk having been left in the defendant's baggage room on the ground floor and to stand and be in water for such period of time that said trunk and contents were completely destroyed and rendered of no value whatsoever. The declaration further alleges that respondent paid to petitioner 66 cents as the usual charge exacted for the storage of the said baggage.

The second plea of the defendant is in full harmony with this portion of the declaration, in that it likewise alleges the baggage was in storage in the baggage room of the petitioner.

It therefore became incumbent, and was the duty of the trial court, to submit the same, under the pleadings in the case to the jury.

In considering this question, the record discloses the petitioner herein demurred to the declaration, and, upon the overruling of the same, pleas were filed. If the petitioner considered the declaration duplicitous, this question should have been raised by proper motion. That is held in the case of Blue v. Staten, reported in 84 Fla. 274, 93 So. 686, viz.:

'Because two causes of action are contained in one count, the declaration would have been amenable to objections upon the ground of duplicity. * * * At common law this objection could have been raised by special demurrer only. * * * But in this jurisdiction special demurrers in common-law actions have been abolished. * * * The question could have been presented by motion for compulsory amendment under the statute. * * * But not to present the point until after verdict is to waive it. * * * If either cause of action alleged is supported by the evidence the judgment should stand.'

This first question suggests that the said baggage was damaged by rainwater which entered the baggage room through glass windows, broken at night by debris blown against them, on the outside, during the second greatest storm in the history of the Miami Weather Office, and that some fourteen employees of the petitioner did everything possible to avert the damage to several hundred trunks.

The negligence alleged by the declaration is the permitting of respondent's trunk to stand and remain in water on the ground floor, which conditions two witnesses testified were evident on the date the baggage was received by the respondent.

The second question involved, according to petitioner, is:

'Should the trial court direct a verdict for the defendant, at the defendant's request, at the conclusion of all of the evidence, where the plaintiff sues the defendant as a common carrier for damage to a parcel of baggage left in the defendant's baggage room from 11:20 A. M., on one day to the night of the third day, and the evidence clearly discloses that the relation of the defendant to the baggage, at the time it was damaged, was that of warehouseman? Is there a fatal variance between the allegata and the probata?'

The pleadings in this action elearly show an action against the petitioner as a warehouseman, and there was ample evidence under which the jury could find in favor of the respondent upon the issue as made by the pleadings.

Should further answer be required or necessary as to questions 1 and 2, reference should be made to instructions numbered 5 and 7, given by the trial court at the request of petitioner. Under instruction No. 5, the court charged, among other things, as follows:

'Under the undisputed evidence in this case it is may duty to instruct you that at the time the rain storm occurred the character of ...