A.R. Harper Piano Co. v. Seaboard Air Line Ry.

• Decision Date: 03 June 1913
• Citation: 65 Fla. 490,62 So. 482
• Parties: A. R. HARPER PIANO CO. v. SEABOARD AIR LINE RY.
• Court: Florida Supreme Court

62 So. 482

65 Fla. 490

A. R. HARPER PIANO CO. v. SEABOARD AIR LINE RY.

Florida Supreme Court

June 3, 1913

Error to Circuit Court, Alachua County; F. A. Whitney, Judge.

Action by A. R. Harper Piano Company against the Seaboard Air Line Railway. Judgment for defendant, and plaintiff brings error. Affirmed.

Syllabus by the Court

SYLLABUS

All the points adjudicated by an appellate court upon a writ of error or an appeal become the law of the case, and are no longer open for discussion or consideration.

Where the appellate court has held, upon a writ of error in an action against a railroad company based upon its liability as a common carrier, that the testimony failed to show the relation of a carrier and shipper, this becomes the law of the case, and, upon a subsequent trial, where the pleadings have not been amended and the issues remain the same, and the testimony adduced by the plaintiff is mostly of a cumulative nature, and the evidence, taken as an entirety, failed to show any liability upon the part of the defendant as a common carrier, the trial court properly directed the jury to return a verdict in favor of the defendant.

COUNSEL

W. S. Broome, of Gainesville, for plaintiff in error.

Hampton & Hampton, of Gainesville, for defendant in error.

OPINION

SHACKLEFORD C.J.

This case comes here for the second time. See Seaboard Air Line Ry. v. A. R. Harper Piano Co., 63 Fla. 264, 58 So 491, to which we would refer for a full statement of the facts. Upon the remanding of the case, the second trial was had upon the same issues. After all the evidence had been submitted by the respective parties litigant, the trial judge granted the motion of the defendant directing the jury to return a verdict for the defendant. While three errors are assigned, they are all argued together; it being agreed by counsel that the only point presented for determination is as to the correctness of this peremptory instruction to the jury.

We have repeatedly held that all the points adjudicated by an appellate court upon a writ of error or an appeal become the law of the case, and are no longer open for discussion or consideration. See McKinnon v. Johnson, 57 Fla. 120 48 So. 910, where prior decisions of this court will be found cited; Pervis v. Frink, 61 Fla. 712, 54 So. 862; Fidelity & Deposit Co. of Maryland v. Aultman, 61 Fla. 197, 55 So. 273; Hillsborough Grocery Co. v. Leman, 62 Fla. 208, 56 So. 684. In the opinion rendered upon the former writ of error, we held as follows:

'The action and the recovery against the railroad company are based upon its liability as a common carrier, while the testimony shows the relations of carrier and shipper did not exist between the railroad company and the owner of the piano.

'The relation alleged is that of a carrier, while the relation shown in evidence is that of warehouseman, and not that of a common carrier. The liability of a warehouseman is quite different

...