*1 1927. Syllabus. A. C. L. R. R. Co. v. Florida Fine Fruit Co. — Corporation, Company, Line Railroad a Atlantic Coast Petitioner, Company, Fine v. Florida Fruit Cor- poration, Respondent. B.
Division January 1927. Filed Rehearing February 25, 1927. Denied Petition the the review of 1. To the extent that it involves proceeding appellate of an inferior court certiorari subject-matter proceeding of but to the extent that reinvestigated, brought Appellate Court will not be before the appeal as on or writ tried or determined on the merits error, original proceeding. it is an Florida, Statutes of authorizes Revised General 2. Section judgments writs of certiorari to review to issue this Court by been affirmed of Record that have Court of the Civil enlarge County, but Duval it does not Circuit Court appellate jurisdiction of this Court as defined the Con- stitution. 'may in- of certiorari be directed to The common law writ they is shown that have exceeded tribunals where it ferior proceeded illegally or where their appeal will writ of error lie. no ordinarily does not extend to con-
4. Review certiorari conflicting testimony, probative force sideration of procedure that are include substantial errors of hut it materially injure complaining party. calculated to pursuant coming to Section In cases to this Court Florida, probative where the Statutes of Revised General jurisdiction affects the force the evidence manifestly contrary finding that is so where power palpable abuse of the on it to show a as facts on evidence or where determine the controverted n:i <>—Voi. COURT OF FLORIDA. SUPREME *2 Syllabus. L. R. R.
A. G. Florida Fine Fruit Co. — finding clearly duly indicates that evidence was not or an considered making erroneous rule law was in observed finding, or where there was serious misconduct finding, injury petitioner involved and material therefrom, may resulted of its exercise appro- sound discretion consider such matters and take priate justice may action thereon in order that the law prevail. by 6. law is well settled that a common carrier reason of public obligation its character is under to furnish cars to shippers by ship proper who the car lot. The measure of obligation generally the carriers’ in this matter is determined by freight ordinarily the amount of carried normal times. Any unusual, extraordinary unprecedented 7. or on demand transportation carrier for ears or other facilities in excess capacity impose duty of its normal will not on it the complying therewith, if it has not the cars hand at the reasonably anticipated time and could the demand provision and made for them. 8. When a common carrier is unable to furnish cars at the suffering time demanded without an undue interference with general rights shippers its business or with the of other may show such facts in defense of an action to hold it neglect
liable for losses occasioned its or to furnish cars transportation other facilities. obligation general' public common carrier 9. Under is transportation to other not bound furnish means of than public or as it owns and uses holds out to the on its purpose. route for that own company properly equipped or not a railroad Whether demands, unpre- supply normal whether there was an question demand at the time in one cedented ably not reason- anticipated, company whether the to be railroad was permitting its be in cars to the service of other carriers using instead of them its own demands whether unavoidably alleged at out reach the time were VOL. L.C. R. R. Co v. Florida Fine Fruit Opinion of Court. questions jury demand are for the to deter- mine. embracing published
11. The tariffs rules or the contract part under which a service on the of a common carrier performed applicable portions to be or the thereof properly introduced in evidence the carrier a suit for damages negligently failing perform such service. A Writ of Certiorari to the Circuit Court for Duval *3 County; Daniel A. Simmons, Judge.
Reversed.
Doggett, Christie & Doggett, for Petitioner: Gaskins, Alexander, P. L. John Gary F. Hall and W. Respondent. for respondent plaintiff' peti J. The as sued the Terrell,
tioner as defendant in the Civil for Duval of Record County in a common negligently law action for transport ing and ventilating and failing provide for refrigerator to ears in transport which to oranges four cars of and grape fruit from Haven, Florida, Winter to in Chicago, Illinois, A May, 1920. demurrer to the declaration was overruled a demurrer original, as was likewise to the first amended pleas. juryA and second amended was waived and trial judgment in plaintiff the Court resulted for the $2,990.40'and (respondent) the sum of costs.
A trial appeal' motion for new was denied and was taken County Circuit Court Duval judgment where the of the Civil Court of Record was affirmed. Motion for re- hearing petition was denied and on of Atlantic Coast Line Company pursuant Railroad to Section Revised Gen- Florida, eral Statutes of certiorari was directed to County commanding Court of Duval Circuit trans- SUPREME COURT OF FLORIDA. A. C. L. R. R. Co. v. Fine Florida Fruit of Court. copy mit to this Court a true of the record and response said cause which was done in to the said writ. It is contended here petitioner, Atlantic Coast Company, (1) Line Railroad that the trial Court erred sustaining plaintiff’s demurrer (defendant’s) to its second pleas, (2) amended permitting the Court erred in plaintiff to introduce in its several orders evidence refrigerator cars, (3) refusing that the Court erred in permit the defendant to introduce in evidence the tariffs under shipments which the transported. involved here were
Against petitioner the contention relator, Florida Company Fine Fruit contends that the writ of certiorari quashed because, should (1) grounds The set forth in the present d0‘not matter which be determined on writ (2) of certiorari. authority 'There is making no the function of a equivalent writ certiorari a writ (3) of error. attempting statute give authority unconstitutional, this case being in violation of Section V, of Article Section of Article V of the Constitu- *4 tion, (4) if even it authority were assumed that such existed, ground no sufficient is shown petition from the and record to sustain the writ. general nature, purpose and function of the common
law
fully
writ of certiorari has been
discussed in former
adjudications
City
of this Court. Basnet v.
of Jacksonville,
18
523; Edgerton
Fla.
v.
Springs,
Green Cove
18
528;
Fla.
Wilcoxon,
Deans v.
Section 5 of Article Y the Constitution defines the jurisdiction of this Court. Section 11 of of the Article V appellate jurisdiction Constitution defines final Cir Courts in cuit this State. To the extent that it involves review the of an inferior court certiorari appellate is an proceeding, but to the extent that the sub ject-matter of proceeding brought Appellate before the reinvestigated, Court will not be or on the tried determined on appeal original pro merits as writ error ceeding. State, Benton v. Fla. 76 South. previously suggested presented
As here was pursuant of Flor Section Revised General Statutes Construing ida. Exp. American Co. v. Act Weatherford, Rep. 820, 86 Fla. this Court South. authorized to issue writs of the rule that it was announced judgments of Civil to review certiorari thereunder been affirmed the Circuit that had Court of Record Act County, but that the said could of Duval Supreme of the enlarge appellate extend limited the Constitution. defined and Court as hold that the generally authorities This Court and to inferior be directed of certiorari common law writ *5 they exceeded their that have it is shown tribunals where illegally and no proceeded jurisdiction or where lie, 253. In Amer- 5 R. C. L. appeal or of error will writ SUPREME COURT FLORIDA. OF L. R. R. Co. Florida Fine Fruit o£ Court. Weatherford, ican Exp. Co. 84 Fla. 93 South. common, Rep. 740, said this Court that certiorari law judicial writ which issues the sound discretion of place Court to an inferior Court, appeal not to take the or but to writ error cause the entire record of the inferior brought up copy inspection, Court to certified superior may order that the Court determine from face of the record whether the inferior Court has exceeded jurisdiction proceeded according or has not to the essential requirement law, of the no appellate cases where direct provided by State, are law. Benton v. Fla. 76 South. ordinarily
Review certiorari does not con- extend to a probative sideration of the conflicting testimony, force of but it procedure include substantial errors of that are materially calculated to injure complaining party. In coming cases this pursuant Section Re- vised Florida, General probative Statutes where force evidence affects the of the Court or where manifestly it is so contrary finding to the that is on as to palpable power show abuse of the to determine the evidence, finding controverted facts where the clearly duly that was not indicates the evidence considered or an making rule law was observed in erroneous involved, finding, or there was serious where misconduct finding, injury petitioner in the material and resulted therefrom, may in the Court the exercise of dis- its sound cretion matters take appropriate consider action justice may thereon in prevail. order the law and Ry. Exp. Weatherford, American Fla. South.
It is therefore well settled that certiorari can not be made perform ot function of appeal writ of error, that Section Florida, Revised General Statutes of *6 A. C. L. E. E. Co. V. Florida Fine Fruit Opinion of Court. extending cannot construed as enlarging appel- late Court, of this but the function of the writ liberally has been interpreted and whether or a cause brought here for review under the Act pre- or otherwise cognizable sents a case for this review on writ of certiorari, depend showing must on the the indi- petition. vidual here first, shows the trial court sus- .that
tained demurrer to defendant’s pleas. second amended pleas These car up shortage set or inability of the railroad company procure shipper and furnish the all the ears of refrigerator type requested by it at time were requested, inability which an was due to unusual demand refrigerator territory cars the immediate throughout portions other country.
The law is well settled that a common carrier reason public of its obligation character is under to furnish cars shippers ship by who the car prop'er lot. The measure obligation of the carrier’s generally this matter deter- freight ordinarily mined the amount of carried nor- must, however, anticipate mal times. The carrier that more transportation at some freight be offered seasons will rolling required ample to have stock others, it than emergencies. The carrier on hand to meet and cars rolling voluntarily to be permit its ears and stock cannot using of other carriers when it should be in the service responsi- own demands and avoid its supply its them to it bility; plead nor demand when can of reach ample rolling stock out unless it is shown to has Rae, & 18 Ill. unavoidably, C. U. R. Co. be so Galena 574; Ayres Chicago Ry. Co., &N. W. Dec. Wis. 68 Am. 432; Chicago, Voorhees v. R. I. & P. N. 37 W. Ry. Co., N. Illinois 71 Iowa 30 W. Cent. Ky. 489, & River & Rail Coal Co. v. S. Coke FLORIDA. OF COURT SUPREME *7 Opinion of Court. Fruit A. L. R. R. Co. v. Florida Fine C. Co. — Note; 4 R. C. L. (N. S.) A. 643 and Rep. 641, W. 44 L. R. 551, Campbell, 91 Tex. Ry. E. & T. Co. v. 673; Houston W. Note; & Wibert 225, A. and Rep. 2, 45 43 L. R. S. W. Y.) 36, (N. Co., 19 Barb. v. New York & E. R. Hebard in 12 Y. same affirmed N. unusual, extraordi- any
The law is also well settled
for cars or
nary
carrier
demand
carry-
normal
transportation
other
in excess of its
facilities
complying
duty of
ing capacity
impose
will
on it
not
therewith,
hand
and
if
has not the cars on
at the time
it
reasonably
demand and
anticipated
not
could
Houston,
674;
673,
4 R. C. L.
provision
them.
Rep.
Cambell,
551,
91
45 S. W.
Ry.
E.
T.
Co. v.
Tex.
& W.
Ry.
2,
225,
Note; Pittsburgh,
& L.
R.
C.
St.
43 L. A.
C.
280;
Racer,
503,
38 N. E.
App.
Rep.
10
37 N. E.
v.
Ind.
Racer,
Pittsburgh,
Ry. Co.
5 Ind.
Rep. 186;
& L.
v.
C. C. St.
209,
& L. Co.
Rep. 853; Pittsburgh,
31 N.
C.
St.
App.
E.
539,
Morton,
682;
Ind.
28
& He
v.
61
Am.
Wilbert
(N.
af
Co.,
Y.) 36
York & E.
19 Barb.
v. New
R.
bard
R.
firmed,
245;
Wilmington & W.
in 12 N. Y.
Branch v.
Wilmington
R. R.
347;
R.
77
& W.
Co. N. C.
Keeter v.
Rae,
68
346;
86 N.
& C. R. Co.
Ill.
C.
Galena
U.
574;
H.
Krepp,
Am. Dec.
Geo.
Inc. New Orleans Great
— —,
R. Co.
Fla.
L. R. A. 225 and Note. Under its a common carrier is not bound to furnish other means of transportation than such as it owns uses holds out L. Fine R. R. Co. v. Florida Fruit Court. public purpose. Pittsburgh. own on its route for that Morton, & L. R. 28 Am. Rep. C. St. Co. v. Ind. supra. E. Houston, Campbell, & W. T. Co. v. equipped company properly
Whether or not a railroad supply demands, unprec- normal there was an whether question or at the time in one edented demand reasonably company anticipated, railroad to be whether permitting of other carriers was its ears to be service *8 supply own or whether using instead of them its demands unavoidably they out reach time of the were at the jury alleged questions demand are the Giorgo Importing Di & S. v. Penn- to determine. 425, 8 A. sylvania Co., Rep. R. 104 Md. Atl. L. R. 65 (N. S.) Note; 108 4 R. L.C. being
The law think the was so defined defendant we in second entitled the tendered amended defense sustaining the pleas, so the order demurrer them was erroneous.
It last that trial erred contended the court in refus- permit defendant to introduce in ing to the the evidence shipments in covering litigation. the involved this tariffs Inspection of declaration that all the discloses its counts in allege shipments substance the sued con- were veyed under tariffs or at the time of the rates effect shipping. published tariffs embraced rules the under performed. They be was to the service were which the element of important the contract or an between contract performance for the carrier of the shipper and the the applicable portions or the and we think thereof service admitted evidence. We have found have been should question, directly point on this but follow- the no .case Georgia, F. & A. R. Co. view: support this Blish ing Rep. 541; 36 Sup. Ct. Missouri, 241 U. S. Milling 244 Ward, Sup. Texas U. S. T. R. Co. of Ct. K. & SUPREME COURT FLORIDA. OF L. R. o£ Court. C. R. Co. v. Florida Fine Fruit Co. — Rep. 617; Cornwell, Sup. Davis v. Ct. 264 U. S. Henderson, Ct, Davis Sup. U. S. subject-matter opinion the
On the basis of of this judgment Record the Civil Court of as affirmend County quashed. Duval Circuit Court of J., J., and Buford, P.
Whitfield, concur. Ellis, J., J., J. Brown, and Strum and concur opinion. rehearing Curiam. —Petition for
Per part on the of re spondent granted was in this cause for purpose considering further whether or not certiorari should ground denied on good that a case general was made on negligence counts. dela^ carefully The record has been re-examined. The verdict general was and 'the errors on which judgment below quashed permeated was so and effected proceed- the entire think ing we judgment that our former herein must be and *9 hereby approved judgment of the Civil Court of Record as affirmed the Circuit Court of Duval County hereby quashed. All concur.