La Floridienne, J. Buttgenbach Co., Societe Anonyme, v. Seaboard Air Line Ry.

• Decision Date: 19 April 1910
• Citation: 52 So. 298,59 Fla. 196
• Court: Florida Supreme Court
• Parties: LA FLORIDIENNE, J. BUTTGENBACH CO., SOCIETE ANONYME v. SEABOARD AIR LINE RY.

52 So. 298

59 Fla. 196

LA FLORIDIENNE, J. BUTTGENBACH CO., SOCIETE ANONYME v. SEABOARD AIR LINE RY.

Florida Supreme Court

April 19, 1910

In Banc. Error to Circuit Court, Marion County; W. S. Bullock Judge.

Action by La Floridienne, J. Buttgenbach Company, Société Anonyme against the Seaboard Air Line Railway. Judgment for defendant, and plaintiff brings error. Affirmed.

Syllabus by the Court

SYLLABUS

Under the provisions of section 2910, Gen. St. 1906, authorizing suits against railroad companies for violation of the rules rates, and regulations of the railroad commissioners, and providing that all suits under this chapter shall be brought within 12 months after the commission of the alleged wrong or injury, the time thus limited is a condition precedent to the bringing of any such suit. Such limitation of time is not like an ordinary statute of limitation, affecting the remedy merely, but enters into and becomes a part of the right of action itself, and, if allowed to elapse without the institution of the action, such right of action becomes extinguished and is forever gone.

Chapter 5624, Laws 1907, which undertook to amend said section 2910 of the General Statutes of 1906, so as to permit such suits to be brought within 12 months after the termination of suits brought by the railroad commission to enforce their rates etc., does not and cannot have the effect of reviving a cause of action that accrued under the amended section of the statute and that had become extinguished by the lapse of time prior to the enactment of said amendatory statute.

COUNSEL Bisbee & Bedell, O. T. Green, and R. L. Anderson, for plaintiff in error.

Geo. P. Rainey, L. N. Green, W. E. Kay, and R. A. Burford, for defendant in error.

OPINION

TAYLOR J.

On the 9th day of August, 1907, the plaintiff in error, as plaintiff below, sued the defendant in error, as defendant below, in the circuit court of Marion County; the declaration alleging as follows:

'For that whereas heretofore, to wit, on the 17th day of December, A. D. 1903, the railroad commissioners duly existing and organized under the laws of the state of Florida, at a meeting of the said commissioners held in Tallahassee, Fla., of which the defendant had due notice and appeared before the said commissioners at said meeting, made and passed an order in part as follows, to wit: 'The rate to be charged by all the railroads and common carriers doing business wholly or in part within the state of Florida for the transportation of phosphate to points within the state shall not exceed one cent per ton per mile.' And did further order: 'That where a shipment of phosphate shall pass over two or more railroads in reaching its destination within the state of Florida, the initial line may charge one and one-half cents per ton per mile for the first ten miles which said phosphate shall be hauled.' And the plaintiff alleges that the defendant company had due notice of and received a copy of the said order soon after the same was made and passed as aforesaid. And the plaintiff further alleges: That the said defendant company refused to comply with and obey the said order fixing the rate for carrying phosphate as aforesaid, and thereupon, to wit, on the 7th day of March, 1904, an action of mandamus was commenced on the relation of the said railroad commissioners and others in the name of the state of Florida, against the said defendant company, in the Supreme Court of the state of Florida, to compel it to obey and comply with the said order and to carry and transport phosphate at the price and rate fixed in said order. That due service was made on the defendant in the said action, and the defendant appeared and answered in the said action. That such further proceedings were had therein that afterwards, to wit, on the 19th day of October 1904, said Supreme Court entered its judgment in the said action in the words and figures following, to wit: 'This cause coming on to be heard upon the amended return of the respondent filed by leave of the court on July 26, 1904, and the joinder of issue upon the amended return of the respondent to the alternative writ of mandamus issued herein, and upon oral and documentary evidence in behalf of the respective parties, submitted on the 12th instant, and having been argued by counsel for the respective parties, and the court having considered the same, and being now advised of its judgment in the premises, finds the issues in favor of the plaintiff: Therefore it is ordered that the peremptory writ of mandamus be and the same is hereby granted; and it is further ordered that the plaintiff do recover of the respondent its costs by it in this behalf expended, which costs are taxed at the sum of -----; and it is further ordered that the respondent is required to make return to this court instanter of its full compliance with the commands of the said peremptory writ of mandamus.' That immediately thereafter the said defendant company removed the record of the said action into the Supreme Court of the United States by writ of error, and such further proceedings were thereafter had in the said Supreme Court of the United States that thereafter, to wit, on December 3, 1906, the said judgment of the said Supreme Court of Florida was affirmed by the judgment of the said Supreme Court of the United States. Plaintiff further alleges that the peremptory writ of mandamus which was ordered by the said Supreme Court of Florida on the 19th day of October, 1904, has never been issued. And plaintiff alleges that during the times hereinbefore and hereafter mentioned the defendant was a corporation and was engaged in the state of Florida in the business of a common carrier, and as such owned and operated a railroad between several points and places in Florida and Fernandina, Fla., and at the said times the Atlantic Coast Line Railroad Company was a corporation and was engaged in doing business as a common carrier in the state of Florida, and as such owned and operated a line of railroad between several interior points and places in Florida and other points and places where its line of road connected with the line of railroad of defendant, making a continuous line of railroad from said interior points and places to Fernandina, Fla. And plaintiff alleges that during the year A. D. 1904 the plaintiff delivered to the said Atlantic Coast Line Railroad Company at Dunnellon Fla., Holder, Fla., and Anita, Fla., 64,358.70 tons of phosphate rock of 2,000 pounds each, destined to Fernandina, Fla., and the said Atlantic Coast Line received the said phosphate rock and carried the same, to wit, to Ocala, Fla., a station on its line of road; that the defendant received the said phosphate rock at Ocala, Fla., from the said Atlantic Coast Line Railroad Company, hereinafter called the other 'carrier,' and carried the same to Fernandina, Fla. And plaintiff alleges that the defendant and the said other carrier charged the plaintiff for the said services the aggregate sum of $132,500.66, and demanded payment thereof, which plaintiff paid, paying from time to time each separate charge for each separate shipment of phosphate which was made for each separate service and shipment. And plaintiff avers that the legal charges, according to said commission rate, for the aforesaid services of transporting the said rock from the places of shipment to Fernandina aforesaid, were in the aggregate the sum of $104,260.79, which was $28,239.97 less than the amount so as aforesaid charged and collected from the plaintiff. And plaintiff avers that the total distance in miles from the said points of shipment of the said phosphate rock to Fernandina, Fla., was, to wit, 162 miles. And the distance the defendant hauled the said rock was 130 miles, and defendant's proportion of the said excess charges made and paid as aforesaid according to the number of miles it hauled said phosphate rock is the sum of $22,659.31, to recover which this action is brought, with legal interest thereon from the date of the said several and respective payments. And plaintiff alleges that during the year A. D. 1905 plaintiff delivered to said other carrier at Dunnellon, Holder, and Anita, Fla., 38,457 tons of phosphate rock of 2,000 pounds each destined to Fernandina, Fla., and the said other carrier received the said phosphate rock and carried the same to, to wit, Ocala, Fla., a station on its line; that the defendant received the said phosphate rock at Ocala aforesaid from the said other carrier and hauled and carried the same to Fernandina, Fla. And plaintiff alleges that the defendant and the said other carrier charged the plaintiff for the said services the aggregate sum of $68,645.20, and demanded payment thereof, which plaintiff paid, paying from time to time each separate charge for each separate shipment of said phosphate which was made for each separate service and shipment. The plaintiff avers that the legal charges according to the said commission rate, for the aforesaid services of transporting the said rock from the places of shipment to Fernandina, were in the aggregate the sum of $62,267, which is $6,378.20 less than the amount so as aforesaid charged and collected. And the plaintiff avers that the total distance in miles from the said points of shipment of the said phosphate rock to Fernandina, Fla., was, to wit, 162 miles; and the distance the defendant hauled the said rock was 130 miles, and that the defendant's proportion of the said excess charges made and collected as aforesaid, according to the number of miles it hauled the said rock, is the sum of $5,118.20, to recover which this action is brought, with legal interest thereon from the date of the said several and respective payments. Plaintiff avers: That the

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