Hamway v. Seaboard Air Line Ry. Co.
| Decision Date | 19 May 1931 |
| Citation | 136 So. 628,101 Fla. 1483 |
| Parties | HAMWAY v. SEABOARD AIR LINE RY. CO. |
| Court | Florida Supreme Court |
Certiorari to Circuit Court, Duval County; George Couper Gibbs, Judge.
Action by F. A. Hamway, trading and doing business as the F. A Hamway Amusement Company, against the Seaboard Air Line Railway Company. Judgment for defendant, entered in the civil court of record, was affirmed on plaintiff's appeal to the circuit court, and plaintiff brings certiorari.
Writ quashed.
Syllabus by the Court.
In proceedings in certiorari addressed to the circuit court as an appellate court in a cause arising in the civil court of record, questions relating to the merits of the cause and in no wise affecting the jurisdiction of the lower courts or the external proceedings in the cause will not be reviewed; there being substantial supporting evidence.
Where in certiorari proceedings in which the decisions of the circuit court as an appellate court and the civil court of record as a trial court are sought to be supervised or reviewed and the record presents no question as to the jurisdiction of the trial or appellate court to determine the controverted facts or whether either court was guilty of a palpable abuse of power in its proceedings or that there was any serious misconduct in the findings of fact and consequent material injury to the petitioner, the writ will be quashed.
Certiorari extends only to illegal proceedings that appear of record. The distinction between 'illegal' and 'erroneous' action of the trial or appellate court is observed in this jurisdiction. The writ of certiorari is limited to an inquiry as to whether the proceedings legally applicable to the case were followed, not whether the rulings of the court on the law and its the rulings of the court on the law and its
A person making an interstate shipment by a common carrier may in given circumstances be bound by the valid provisions of a special rate, although he does not sign the contract of shipment.
A contract of shipment in interstate commerce which does not exempt the carrier from loss due to its own carelessness, but places the responsibility for the loss upon the shipper if it is due to the latter's negligence or carelessness is valid.
When in an interstate shipment of merchandise the shipper seeks a recovery against the interstate carrier for an alleged loss of part of the shipment which was made under terms securing a lower rate and the court finds from the evidence that the goods were shipped, that the shipper obtained the lower rate for the transportation of himself and property and accepted such rate, and held that in such circumstances the shipper was bound by the terms of the lower rate, this court in certiorari will not examine the evidence to determine its sufficiency to support such conclusion.
COUNSEL Thomas W. McIlvain, of Jacksonville, for petitioner.
Fleming & Fleming and C. H. Lichliter, all of Jacksonville, for respondent.
F. A Hamway, doing business as Hamway Amusement Company, sued the Seaboard Air Line Railway Company in the civil court of record for Duval county for damages for the loss of a gasoline motor which was contained in a baggage car which the plaintiff delivered to the defendant at Fernandina, Fla consigned to the plaintiff at McIntosh, Ga.
The declaration alleged that the defendant negligently left the doors of the baggage car open and unlocked so that in transit the gasoline motor fell from the car and was lost. The value of the motor was alleged to be $628.31, and was used by the plaintiff as part of his show or ferris wheel and merry-go-round equipment. The demurrer was overruled, and the defendant interposed its pleas, which were not guilty that an agent of the plaintiff opened the door of the car and through his negligence the gas motor was lost. An amended third plea averred that the shipment was an interstate movement and was controlled by the provisions of the special car and train tariff on file with the Interstate Commerce Commission, known as Agent W. H. Howard's special car and train tariff No. 8338, Interstate Commerce Commission No. H711, which among other things required the plaintiff to assume responsibility for properly securing all doors to the car and so loading the property as to prevent damage or loss in transportation. The fourth and fifth pleas were addressed only to the reduction of damages.
An additional sixth plea averred that the special car and train tariff referred to in the amended third plea provided that the plaintiff should assign a man to safeguard the property while in the car in transit and that the plaintiff did assign a man as required, so that there was no responsibility upon the defendant. An additional seventh plea averred that the special tariff referred to required the plaintiff as owner of the property to assume responsibility for any loss of property occasioned by the negligence of the owner or his employees. The plea averred that the loss was occasioned solely by the negligence of the plaintiff in failing to properly care for the property in transit.
The special tariff referred to in the pleas contains the clause set up in the pleas, and was in evidence at the trial.
There was a verdict of not guilty for the defendant and judgment entered in its behalf. A motion for a new trial was denied, and an appeal was taken by the plaintiff to the circuit court, which affirmed the judgment of the civil court of record. The judgment of affirmance was rendered on the 26th day of January, 1929.
The plaintiff in February, 1929, applied to this court for a writ of certiorari to the circuit court requiring the certification to this court of the record of the proceedings in the cause.
The petitioner contends that the trial court should not have allowed the amended third plea and the additional sixth and seventh pleas because the special car and train tariff No 8338 on file with the Interstate Commerce commission, known as I. C. C. No. H711, is void and of no force or effect as applied to the plaintiff's case, because the...
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