Hilkmeyer v. Latin Am. Air Cargo Expediters, Inc.

CourtUnited States State Supreme Court of Florida
Writing for the CourtDREW; TERRELL
Citation94 So.2d 821
PartiesA. K. HILKMEYER, d/b/a Dixie Hatcheries, Petitioner, v. LATIN AMERICAN AIR CARGO EXPEDITERS, Inc., a Florida corporation, Respondent.
Decision Date24 April 1957

Page 821

94 So.2d 821
A. K. HILKMEYER, d/b/a Dixie Hatcheries, Petitioner,
v.
LATIN AMERICAN AIR CARGO EXPEDITERS, Inc., a Florida corporation, Respondent.
Supreme Court of Florida, Division B.
April 24, 1957.
Rehearing Denied May 22, 1957.

Page 822

Shutts, Bowen, Simmons, Prevatt & Julian, Miami, for petitioner.

Abe Schonfeld, Miami Beach, for respondent.

DREW, Justice.

The case arises on a petition for certiorari to review a circuit court affirmance of a civil court of record judgment, wherein the civil court of record judge set aside a jury verdict upon a motion for judgment non obstante veredicto by the defendant, where there was also pending a reserved ruling on a motion by defendant for a directed verdict. The trial court set aside the jury verdict because 'the evidence adduced at the trial showed that the defendant did not make a direct contract to pay for the goods involved, but made only a guarantee.' 1

Page 823

In this case the labels are not important and the court will consider the situation as the various elements actually functioned. The trial judge reserved his ruling on a motion by defendant for a directed verdict made at the close of all the evidence presented by both sides, and when he granted defendant's mislabeled motion for 'verdict non obstante veredicto' after verdict by the jury for plaintiff, the situation was actually that contemplated by Rule 2.7(b), 1954 Rules of Civil Procedure, 31 F.S.A.:

'(b) Reservation of Decision on Motion. Whenever a motion for a directed verdict made at the close of all of the evidence is denied or for any reason in not granted, the court is deemded to have submitted the action to the jury at such time subject to a later determination of the legal questions raised by the motion. Within 10 days after the reception of a verdict, a party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for a directed verdict * * *.'

The circumstances of this case are that A. K. Hillkemeyer, doing business as Dixie Hatcheries, petitioner here, plaintiff below (hereinafter called plaintiff) sued Latin America Air Cargo Expediters, Inc., respondent here, defendant below (hereinafter called defendant) for $2,600 which represented the sale price of a shipment of baby chickens. The ultimate purchaser of the chickens in South America had previously dealt with plaintiff through a transshipping agent, who paid for the chickens under a C.O.D. arrangement; and through defendant, who operated at that time under an arrangement not revealed in the record. Defendant is a transshipping agent, who in this instance received shipments over local air lines from the plaintiff and arranged for transferring the shippments to overseas air lines. Plaintiff claims that defendant entered into an oral agreement to directly assume the entire responsibility of paying him for this particular shipment. The defendant claims that it did not directly assume liability, but only accepted the goods for transshipment and agreed to operate as a paying agent for the ultimate purchaser. Plaintiff has made no attempt to recover from the ultimate purchaser.

This case must be examined and disposed of under rules developed by the Court of govern 'common law' certiorari. 2

Page 824

On this subject we said in Nation v. State, 1945, 155 Fla. 858, 22 So.2d 219:

'The common-law writ of certiorari issues, not to serve the purpose of an appeal, or to give an aggrieved party a second appeal, but to cause the record of an inferior court to be brought up in order that a superior court may determine from the face of the record whether the inferior court has exceeded its jurisdiction or has not proceeded in accordance with the essential requirements of law. * * * The writ being thus limited in function, the subject matter of a suit that has been tried in a court of competent jurisdiction and thereafter reviewed in an appropriate appellate tribunal will not be reinvestigated, tried and determined upon the merits generally when brought here by certiorari.' (Emphasis supplied.)

The writ of certiorari is issuable or not in the sound judicial discretion of the Supreme Court. Janet Realty Corp. v. Hoffman's, Inc., 1943, 154 Fla. 144, 17 So.2d 114. Although this case presents a close question it involves a serious enough departure from the essential requirements of law to warrant a favorable exercise of our discretion.

The considerations which would authorize a trial judge to direct a verdict are the same as those involved in a reserved motion for a directed verdict under Rule 2.7(b). Cr. Marsh v. Illinois Central R. Co., 5 Cir., 1949, 175 F.2d 498. A great variety of situations have brought forth numerous formulas for providing standards of proof for submission of evidence to the jury. The Supreme Court of the United States has said: 'Nor is the matter greatly aided by substituting one general formula for another. It hardly affords help to insist upon 'substantial evidence' rather than 'some evidence' or 'any evidence,' or vice versa. The matter is essentially one to be worked out in particular situations and for particular types of cases. Whatever may be the general formulation, the essential requirement is that mere speculation be not allowed to do duty for probative facts, after making due allowance for all reasonably possible inferences favoring the party whose case is attacked.' Galloway v. United States,...

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28 practice notes
  • Mace v. M&T Bank, Case No. 2D16-3381
    • United States
    • Court of Appeal of Florida (US)
    • March 25, 2020
    ...which is not necessary to the determination of the issue before the court is dicta. Hilkmeyer v. Latin Am. Air Cargo Expediters, Inc., 94 So. 2d 821, 825 (Fla. 1957) ; see State v. Yule, 905 So. 2d 251, 259 n.10 (Fla. 2d DCA 2005) (Canady, J., concurring specially) ("A holding consists of t......
  • Olin's, Inc. v. Avis Rental Car System of Fla., Inc., No. 61-726
    • United States
    • Court of Appeal of Florida (US)
    • May 22, 1962
    ...judge should not have directed such verdict. The Supreme Court of Florida, in Hilkmeyer v. Latin American Air Cargo Expediters, Fla.1957, 94 So.2d 821, stated at page 'This Court's views have recently been recorded: 'Power to direct a verdict should be cautiously exercised and the same shou......
  • 6551 Collins Ave. Corp. v. Millen
    • United States
    • United States State Supreme Court of Florida
    • July 11, 1958
    ...for Use and Benefit of Hamrick v. Norton, 1942, 149 Fla. 651, 6 So.2d 632; Hilkmeyer v. Latin American Air Cargo Expediters, Fla.1957, 94 So.2d 821. Thus, Rule 2.7(b) introduced an entirely new concept into our trial practice. In effect, it conferred upon the trial judges of this state the ......
  • Kovaleski v. State, No. 4D06-1168.
    • United States
    • Court of Appeal of Florida (US)
    • January 5, 2009
    ...allegation." That statement is contrary to our holding in Washington. It is also dicta. Hilkmeyer v. Latin Am. Air Cargo Expediters, Inc., 94 So.2d 821 (Fla.1957) (language which is unnecessary to the determination of the cause is dicta). That dicta, however, is supported by two cases from ......
  • Request a trial to view additional results
28 cases
  • Mace v. M&T Bank, Case No. 2D16-3381
    • United States
    • Court of Appeal of Florida (US)
    • March 25, 2020
    ...which is not necessary to the determination of the issue before the court is dicta. Hilkmeyer v. Latin Am. Air Cargo Expediters, Inc., 94 So. 2d 821, 825 (Fla. 1957) ; see State v. Yule, 905 So. 2d 251, 259 n.10 (Fla. 2d DCA 2005) (Canady, J., concurring specially) ("A holding consists of t......
  • Olin's, Inc. v. Avis Rental Car System of Fla., Inc., No. 61-726
    • United States
    • Court of Appeal of Florida (US)
    • May 22, 1962
    ...judge should not have directed such verdict. The Supreme Court of Florida, in Hilkmeyer v. Latin American Air Cargo Expediters, Fla.1957, 94 So.2d 821, stated at page 'This Court's views have recently been recorded: 'Power to direct a verdict should be cautiously exercised and the same shou......
  • 6551 Collins Ave. Corp. v. Millen
    • United States
    • United States State Supreme Court of Florida
    • July 11, 1958
    ...for Use and Benefit of Hamrick v. Norton, 1942, 149 Fla. 651, 6 So.2d 632; Hilkmeyer v. Latin American Air Cargo Expediters, Fla.1957, 94 So.2d 821. Thus, Rule 2.7(b) introduced an entirely new concept into our trial practice. In effect, it conferred upon the trial judges of this state the ......
  • Kovaleski v. State, No. 4D06-1168.
    • United States
    • Court of Appeal of Florida (US)
    • January 5, 2009
    ...allegation." That statement is contrary to our holding in Washington. It is also dicta. Hilkmeyer v. Latin Am. Air Cargo Expediters, Inc., 94 So.2d 821 (Fla.1957) (language which is unnecessary to the determination of the cause is dicta). That dicta, however, is supported by two cases from ......
  • Request a trial to view additional results

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