Payne v. Ivey

• Decision Date: 25 March 1922
• Citation: 93 So. 143,83 Fla. 436
• Parties: PAYNE, Director General of Railroads v. IVEY et al.
• Court: Florida Supreme Court

93 So. 143

83 Fla. 436

PAYNE, Director General of Railroads v. IVEY et al.

Florida Supreme Court

March 25, 1922

Rehearing Denied May 2, 1922.

Error to Circuit Court, Duval County; Daniel A. Simmons, Judge.

Suit by C. B. Ivey and another against John Barton Payne, Director General of Railroads. From a judgment against the Director General, he brings error.

Reversed and rehearing denied.

On Application for Rehearing.

Syllabus by the Court

SYLLABUS

Where defendant's demurrer to declaration is overruled, a subsequent plea in abatement to venue is waived. Where defendant demurs generally to a declaration, and the demurrer is overruled before a plea in abatement to the venue is filed, the right of the defendant to plead his privilege as to the venue is waived, and a demurrer to the plea in abatement to the venue is properly sustained.

Instruction should not impose greater burden on party than law requires. A charge or instruction to the jury should not impose a greater burden upon either the plaintiff or the defendant than the law requires.

Ordinary care required of property owner. In the absence of statutory or contract obligations imposing a greater duty as to the degree of care, prudence, foresight, or attention that should be exercised by one to so use his own property as not to needlessly or unduly injure others, the rule is that ordinary care is required, or such care as ordinarily a person of average prudence would give to a matter under the circumstances, where his own right and the rights of others are involved.

In action for destruction of growing crop, a charge authorizing damages based on speculative production and profits is harmful error. In an action to recover damages for the destruction of a growing crop, a charge that authorizes damages to be predicated upon a finding of speculative production and profits is harmful error.

Function of a petition for rehearing stated. The proper function of a petition for rehearing is to present to the court in clear concise terms some material point that the court overlooked or failed to consider, only this and nothing more.

Application for rehearing dismissed where accompanied by written argument and citation of authority; application for rehearing dismissed where issue is joined with court as to correctness of conclusion upon points passed upon in decision application for rehearing rearguing cause in advance of permit dismissed. The following are violations of the rule that will cause a dismissal of an application for rehearing viz.: (1) To accompany the petition with, or to include therein, a written argument and citation of authorities; (2) joining issue with the court in such application, as to the correctness of its conclusions upon points involved in its decision that were expressly considered and passed upon; and (3) an application for rehearing that reargues the cause in advance of a permit from the court for such rehearing.

COUNSEL

Robert H. Anderson and Stafford Caldwell, both of Jacksonville, for plaintiff in error.

A. H. & Roswell King, of Jacksonville, for defendants in error.

OPINION

WHITFIELD J.

On September 6, 1920, C. B. Ivey and E. S. Estes filed their declaration in the circuit court for Duval county against the Florida East Coast Railway Company, a corporation, in which it is alleged:

'That the plaintiffs are the owners of described land in St. Johns county, Fla., 'situated on and near the right of way of defendant's railroad tracks'; (1) 'that defendant * * * constructed and made a railway embankment varying in height from, to wit, 3 to 6 feet high from point to point on said railroad down to the said property, and thereby cut off, obstructed, and prevented the water from flowing away from said land in its natural course, shed, and direction, and by the erection of said embankment defendant directed and diverted the waters flowing off a large area from their natural course, and forced said water southward down along the said embankment of said railroad track in large quantities, and thereby caused said waters to flow upon and over said land; that at the time of the injury and damage complained of, to wit, during the year 1920, and for a long time thereafter, plaintiffs were, and are now, the owners of said land; that plaintiffs had growing crops of Irish potatoes on said land, and that said crops were injured and damaged by reason of the wrong of defendant in the premises as alleged;' (2) 'plaintiff alleges all the allegations of the first count and further alleges that plaintiff was also damaged in any by the loss of fertilizer in and on said land and in the loss of seed potatoes which had been planted in said land, and in the loss of labor and material put upon said land, and in the cultivation of said crop by reason of the wrong of the defendant in the premises as alleged;' (3) 'that defendant made said ditch about 4 to 5 feet broad and about 2 to 3 feet deep and along the course of said ditch gradually widened and deepened the same and continued to widen and deepen the same until it made said ditch, to wit, 12 to 18 feet broad and, to wit, 8 feet deep at a point or place, to wit, opposite the northwesterly boundary and portion of said land from this point or place defendant made said ditch gradually narrower and shallower until said ditch was made and narrowed to a width of to wit, 4 to 6 feet wide and shallowed to a depth of, to wit, 3 feet deep, and by reason of so constructing said ditch said water was caused and forced to flow down upon and over said land to the damage of the plaintiffs;' (4) 'that at and from said northerly end of said ditch and from point to point and place to place southerly along said ditch defendant made and dug said ditch through a number of ponds and swamps, and thereby gathered and took the waters from said swamps, and thereby drained the waters therefrom and from large areas surrounding and contiguous thereto, and thereby caused and forced said waters to flow upon and over said land to the damage of the plaintiffs;' (5) 'that connected with said ponds and swamps there were other ponds and swamps which formed strands, drains, or gutters extending and continuing for long distances easterly from said embankment, which strands, drains, or gutters formed the natural waterways and courses over a large area, and by reason of the construction of said embankment and ditch the waters from said ponds and swamps were diverted, directed, and forced down upon and over said land, to the damage of the plaintiffs.'

A bill of particulars was filed with the declaration.

On September 6, 1920, the defendant railroad company filed a petition praying that the Director General of Railroads, as Agent of the President of the United States, be substituted as defendant; the alleged injury having occurred while the railroad was being operated under the control of the federal government. The motion was granted, and the Director General of Railroads was ordered substituted as the sole defendant in the cause, and the defendant company was discharged.

On September 25, 1920, the defendant Director General of Railroads filed a general demurrer to the declaration and also a motion to strike a portion of the first count of the declaration. The demurrer and motion to strike were on October 14, 1920, overruled and denied.

On October 16, 1920, the defendant, Director General of Railroads, filed a plea in abatement to the venue, alleging in effect that the Director General of Railroads is not a resident of Duval county, and that the cause of action accrued in St. Johns county. On the same day the defendant Director General of Railroads filed pleas to the merits of the cause. A demurrer to the plea in abatement to the venue was filed, one of the grounds being that the plea was 'not offered at the proper time.' This demurrer was sustained, and error is assigned thereon upon a writ of error taken by the defendant, Director General of Railroads, to a judgment awarding damages in favor of the plaintiffs at a trial on the merits of the cause.

As at the time the alleged cause of action arose the railroad was being operated by an agency of the federal government under the war powers, the action was improperly brought against the railroad company, and should have been brought in a proper county against the Director General of Railroads under federal regulations providing for such actions to be brought against a federal agency even though at the time the action was instituted the railroad had been returned to its owners.

When the Director General of Railroads was substituted as sole party defendant in the action, the suit was then in effect one against the United States under the authority of an act of Congress conferring the right of action where causes of action arose for which the federal government is, under the federal law, liable in damages.

The action might have been brought and maintained in St. Johns county, where the causes of action accrued (3 Farnham on Waters, 2822), but it could not be maintained against the Director General of Railroads in Duval county without his consent, express or implied, by waiver or otherwise.

Whether or not it be conceded that section 206 of the Transportation Act approved February 28, 1920 (41 Stat 461), relates to venue as well as to rights of action against a federal agency in courts having jurisdiction of such causes, so as to make the action maintainable in Duval county, need not be here determined, since the Director General filed a general demurrer to the declaration, which was overruled before he filed a plea in abatement to the venue, and this operated as a waiver of the privilege to have the action tried in St. Johns county, where the cause of action arose or...