Miami Bridge Co. v. Miami Beach Ry. Co.

• Decision Date: 05 March 1943
• Citation: 12 So.2d 438,152 Fla. 458
• Parties: MIAMI BRIDGE CO. v. MIAMI BEACH RY. CO.
• Court: Florida Supreme Court

12 So.2d 438

152 Fla. 458

MIAMI BRIDGE CO. v. MIAMI BEACH RY. CO.

Florida Supreme Court

March 5, 1943

Rehearing Denied April 6, 1943. [Copyrighted Material Omitted]

Mitchell D. Price, Zaring, Florence & Kirchik and Shutts, Bowen Simmons, Prevatt & Julian, all of Miami for petitioner.

Loftin Calkins, Anderson & Scott, of Miami, for respondent.

BROWN, Justice.

The petition for interlocutory certiorari under Rule 34 for the review of a certain order made by the Circuit Court of Dade County in the above entitled cause was denied by this Court, and counsel for the petitioner, the Miami Bridge Company, filed a petition for rehearing which has raised in the minds of a majority of the Court some serious doubt of the correctness of our former ruling, and the Court decided to reconsider the case on this petition for rehearing and the same was referred to this writer for the preparation of an opinion on the questions involved.

The Miami Beach Railway Company filed a bill against the Miami Bridge Company in which it alleged that it was engaged in the operation of a bus line between Miami and Miami Beach, under franchises granted by both municipalities, via the County Causeway and the 79th Street Causeway; that the Bridge Company was operating a toll road and bridge known as 'The Venetian Way' between Miami and Miami Beach, along and over a designated route, over a line of causeways and islands and two bridges, under Chapter 10497, Special Laws of 1925, which route was located a short distance North of the County Causeway. That the Venetian Way was a shorter and more direct Route joining the two cities and that the plaintiff desires to operate its buses and to reach otherwise inaccessible sections of the Beach, but that the Bridge Company not only declined to fix a rate for the buses comparable to those charged by it to other common carriers but refused to permit the plaintiff to operate its buses over the causeway at any rate. The bill prayed that if it be determined that the defendant had the right to make a charge for the use of such road and bridges, then and in that event it be required by mandatory injunction to fix a charge for the use of such road and such bridges by the plaintiff in the operation of its buses fair and reasonable in all the circumstances and not disproportionate to that made by it to others similarly situated, and that it be enjoined and restrained perpetually from charging any toll that would be unreasonable or in excess of that charged others in like circumstances, and that upon the plaintiff's willingness to pay such reasonable charges the defendant be enjoined perpetually from interfering in anywise with plaintiff's use of such roads and bridges and the operation of its buses thereon.

Certain interrogatories were filed by the plaintiff to the defendant, in answer to which the Bridge Company stated that it had only one contract with any person, firm and corporation for the operation of jitneys, jitney buses, taxi cabs or other vehicles over the Venetian Way, which contract was made with the Venetian Short Way, Inc., a copy of which was attached to its answer. This contract shows that Venetian Short Way, Inc., agreed to pay the Bridge Company $3,000 as and for tolls for their operation of 'for-hire' cars across said Venetian Causeway during the years 1940 and 1941, for as may trips as years 1940 and 1941, for as many trips as 'a total of one hundred tag months,' the said $3,000 to be paid at the rate of stated sums per month for each month commencing January 1, 1940, and running through to December 31, 1941, and that should the Venetian Short Way, Inc., desire to operate cars in addition to those above set forth, it could do so at the rate of $25 'per tag month' except for 'colored cars which shall be $5.00 per month.' And the Bridge Company agreed that, unless forced to do so by law, it would not enter into any agreement nor permit any buses or other passenger for-hire cars to operate across their causeway for less than the standard advertised toll rate for buses or passenger cars, except 'Florida Year Around Club Aero-Cars.'

This suit was begun before the expiration of the above contract.

The defendant Bridge Company filed a motion to dismiss the bill upon various grounds, which motion was denied.

The defendant Bridge Company filed an answer and then an amended answer, in which, among other things, it was alleged that the plaintiff had never obtained a franchise to operate between the Cities of Miami and Miami Beach over the Venetian Causeway from either of said cities, nor a franchise to operate over the streets leading to the Venetian Causeway in either of said cities leading to the Venetian Causeway. The answer alleges that the Bay Biscayne Improvement Company constructed said roadway and bridges under a franchise granted by Chapter 10497 of the Special Acts of 1925, and that it was the owner and holder in fee simple of the right of way, bridges, as well as the franchise rights, and that all the rights, property, franchises, etc., formerly owned and held by the Bay Biscayne Improvement Company, had since been acquired by the present Company, the Miami Bridge Company. That the Venetian Short Ways, Inc., was the owner of a large number of jitney sedans, and that defendant's contract with that company had reference to that type of transportation, and that the defendant had made no contract with any one for the operation of buses. That the jitney sedans weigh approximately 4,000 pounds and carry six or seven persons including the driver. That the buses which the plaintiff wishes to operate weigh approximately 10,000 pounds and will carry between fifty and sixty passengers and when loaded will weigh from three to four times as much as a loaded sedan; that the buses operated by the plaintiff travel at great velocity and by reason of their weight and velocity of travel would be destructive to the surface of the Venetian Way and dangerous to the draw bridges, of which there are two, and would make the maintenance of the Venetian Way much more expensive. That the plaintiff had never offered to operate buses at the rate fixed by the statute, Chapter 10497, and that the plaintiff by its bill seeks to compel the defendant to enter into a contract, the terms and conditions of which are unknown to the defendant and are not disclosed to the court, and that the court is without jurisdiction to make such a contract between the parties. That the annual expense of maintaining said road and bridges and operating the same amounts to approximately $149,000 per year. And that the closing of the causeway and bridges from too heavy traffic would work irreparable injury to the persons living on the islands and materially interfere with the military training now going on in the City of Miami Beach, the United States Government having been permitted to use the Causeway for military purposes and the transportation of passengers and military equipment between the two cities. That the two draw bridges were not constructed to withstand the weight and strain which would result from continued operation of plaintiff's buses thereover except for a short period of time, and would result in such damage to the surface of the Venetian Way as to make necessary frequent repairs, and that such bus operation might result at any time in a break-down of said draw bridges and the cessation of traffic. The defendant was permitted to attach as an exhibit to its amended answer a copy of the report made by Major C. F. Harding, Post Engineer, at the request of the Commanding General of the Engineering Section, based on an examination by him of the two bridges. We quote a few paragraphs from that rather lengthy report as follows:

'Design loads for all of the bridge spans were found to be critical at the bascule sections, the design live load for which was based on two (2) ten ton trucks with 14' wheel base. It was assumed that standard Miami Beach Railway Company's 27-passenger buses with 18' wheel base would be used for transporting troops. These buses are capable of tranporting fifty (50) men with hand baggage. Total weight of such a bus, carrying 50 men as outlined above, would be approximately ten tons.

'Although the original design loads allowed for two ten ton vehicles, it is recommended that, due to the age of the bridge spans and bascules, which show moderate deterioration, but one such vehicle be allowed to traverse any given span at a time. This limitation could be easily accomplished by a simple rule of allowing only one-way traffic of such vehicles over the bridge spans and limiting the distance between buses to a minimum of fifty feet, at a maximum speed of 25 miles per hour.

'Under the above limitations and structural repairs as recommended below, the bridge spans may be considered safe for above-mentioned loads.'

The last paragraph reads:

'Generally the roadways will bear up under increased traffic of a heavy nature for some time with no repairs necessary, but annual maintenance may be increased about fifty per cent. The Miami Bridge Company has no equipment or material on hand for roadway maintenance and is unable to obtain any due to priorities. In the past years all repair work has been handled for them by the Belcher Oil Company. The roadways, except on Belle Isle, received on oil surfacing in 1939 costing $30,000.00. This will be necessary again in about two years if subjected to usage by heavy vehicles. It is estimated that normal maintenance requires about 25 yards of sand asphalt paving, but this does not cover repairs due to settlement, etc.'

On October 2, 1942 the plaintiff moved the court for a cecree on the bill of complaint and amended answer 'on the ground that the amended answer is insufficient as...