83 Fla. 436 | Fla. | 1922
Lead Opinion
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 plaintiff's are the owners of described land in St. Johns County, Florida, “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: three to six 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
A bill of particulars ivas 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 tfye 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 venu'e, alleging in effect that the Director General of Railroads is not a
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, undér the Federal law, liable in damages.
The action might have been brought and maintained in St. Johns County where the cause 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.
In transitory actions where a court having jurisdiction of such matters acquires jurisdiction of the person of the defendant in an action, it thereby gets jurisdiction of the subject-matter of the transitory action. Jurisdiction of the person of the defendant in the cause may be obtained by due service of process on the defendant or by his appearance in the cause or by waiver. Although jurisdiction is obtained of the defendant he may still plead his privilege as to venue until the privilege is expressly or impliedly waived by the defendant. If the defendant does not reside in the State, and the cause of action arose or accrued in the State, the defendant though duly served with process and after appearance or waiver'of process, may before or at the time of pleading to the merits, by plea in abatement to the venue, demand that the declaration be quashed if the transitory action is not brought in the county where the cause of action accrued. Curtis v. Howard, 33 Fla. 251, 14 South. Rep. 812. But where trial is had on the merits (Bucki v. Cone, 25 Fla. 1, 6 South. Rep. 160), or where there is default in pleading after appearance (Baker & Holmes Co. v. Indian River State Bank, 61 Fla. 106, 55 South. Rep. 836), or where a general
It does not clearly appear that this is such an action that it must be maintained in the county where the land that was flooded is situated. See Archibald v. Mississippi & T. R. Co., 66 Miss. 424, 6 South. Rep. 238.
In this case the Director General of Railroads, having demurred generally to the declaration, and the demurrer having been overruled, before the plea in abatement to the venue was filed, the right of the defendant to plead his privilege as to the venue was waived, and the demurrer to the plea in abatement was properly sustained.
The essential allegations of the declaration are in effect that the defendant so constructed and made a railway embankment and thereby cut off, obstructed and prevented the surface water from flowing away from plaintiffs’ 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 waters to flow upon and over plaintiffs’ land and injured the growing crops on said land; and that defendant so dug and made as specifically stated a ditch along the east side of said embankment and thereby gathered water from ponds and swamps and large areas contiguous thereto. by reason of which, said water was' caused and forced to flow down upon and over said land:'
A plea'of not 'guilty and numerous special pleas were filed. Fo'iif of the píeás setting up '(l) more than twenty years use of the embankment in substantially' the same condition as that complained of, (2) skillful construction of the embankment, (3) skillful construction of the ditch so as,to carry off all surface waters flowing therein and empty the same into the natural outlet,, but through no fault of defendant the ditch became obstructed, (4) denial of construction of the ditch as alleged with -the harmful result alleged. These four pleas were eliminated on demurrer and motion. Other pleas denying the specific allegations of construction'of embankment and ditch and harmful results as alleged aver that the alleged injury was proximately caused by unusual, excessive, unexpected and unprecedented rains and without defendant’s fault, with other averments that may be covered by the general isstie.
It is not clear that the court erred in eliminating the plea as to twenty years similar condition of user, since the relations of the properties during these years and the effect of the embankment and ditch on surface waters adjacent to plaintiffs ’ land is not averred. As to prescription rights see 3- Farnham on Waters 2635.
The same may be said' as to the plea of skiílfúl construction, as it is not averred that the construction was' skillful with reference to the rights of the abutting property owners. ' -' " . - - .
The court gave this charge: “The court charges you that the liability of water courses in their natural course in times of high water to do injury to adjoining property if its flow is in any manner interfered with is a matter of such notoriety that a railroad company carrying its track across such natural water course is bound to take notice of the fact; and its duty to its neighbors requires that it exercise the highest care and circumspection in making provision for the unusual stages of water for the benefit of adjoining land-owners.”
If it be conceded that the evidence showed the existence of “water courses” that were crossed by the railway embankment here complained, the instruction that the defendant’s “duty to its neighbors requires that it exercise the highest care and circumspection in making provision for the unusual stages of water for the benefit of adjoining land-owners,” impressed upon the jury as a matter of law an erroneous and more exacting degree of care than the law imposes under the doctrine of reasonable user. See Cason v. Florida Power Co., supra; Florida Power Co. v. Cason, 79 Fla. 619, 84 South. Rep. 921; Brumley v. Dorner, 78 Fla. 495, 83 South. Rep. 912; Bucki v. Cone, 25 Fla. 1, 6 South. Rep. 160; 20 R. C. L. 7; 2 Elliott on Railroads §1057g.
A charge or instruction to the jury should not impose a greater burden upon either the plaintiff or the defendant than the law requires. Coombs v. Rice, 68 Fla. 499, 67 South. Rep. 143.
In the1 absence of statutory or contract obligations imposing a greater duty as to the degree of care, prudence,
Other charges given predicated upon the existence in the vicinity of plaintiffs’ land of “natural water courses” that by the defendant’s railroad lateral ditches were drained and the waters forced to flow down upon and over the plaintiffs’ land, are not justified by the evidence.
The court charged the jury as follows: “The measure or rule of evidence in cases of this kind, gentlemen of the jury, is a preponderance of the evidence, and the burden is upon the plaintiffs to establish the issues in their behalf by such preponderance of the evidence. If you feel that the plaintiffs have met this burden and have established the issues in their behalf as to any one count or more of the declaration, the issues raised thereon by the pleas, then it will be your duty to-find in favor of plaintiffs and assess their damages according to the instructions I have already given you. If you find that the plaintiffs have refused to meet the burden thus cast upon them and have not so established the issues in their behalf by such preponderance of evidence, then it will be your duty to find the defendant not guilty.”
Exception was taken to the middle sentence of the charge. The word “feel” may have been intended to be “find.” As used it was inappropriate.
Reversed.
Concurrence Opinion
Concurring.
I concur in the decision and opinion in this case, except in so far as it holds that the Director General of Railroads by filing a demurrer to the declaration, lost his right to enforce General Order No. 18a of April 18, 1918, by a plea in abatement.
This order is as follows: “ ‘ It is therefore ordered that all suits against carriers while under Federal control must be brought in the county or district where the plaintiff resided at the time of the accrual of the cause of action, or in the county or district where the cause of action arose.’ ”
There is a notable distinction in suits between private parties, and suits of this character against the Director General of Railroads. The ■ United States Government had taken over and was operating this railroad at the time
Under General Order No. 18a the Government through the Director General of Railroads consented to be sued only “in the county or district where the plaintiff was residing at the time of the accrual of the cause of action, or any county or district where the cause of action arose. ’ ’
There is a wide difference between a plea in abatement as to venue, when filed by an ordinary litigant and when filed by the Government of the United States. In the one, the right to have the cause tried in a particular place is a privilege which a private person may avail himself of or not as he sees fit. In the other, the consent of the Government to be tried at all, and then only in a particular place, is an absolute right as distinguished from a privilege, and General Order No. 18a in which the Government asserts its right, is not to be taken as modified or waived by anything less than another order of the Director General to that effect.
I think that the right and power of the Director General of Railroads to prescribe the venue in which he would permit himself to be sued was absolute, and was not waived or affected by his interposing a demurrer to the declaration, before filing his plea in abatement, and that the demurrer to the plea in abatement should have been overruled.
When this question was before the Judge of the Circuit Court for Duval County he had for consideration the
A demurrer to the plea in abatement was sustained, and on appeal to the Supreme Court of Mississippi the judgment was affirmed. The court said: ‘ ‘ The question raised by the plea in abatement is of some interest, and we have decided to express our views thereon. The concrete question is about this: ‘Did Congress confer upon the President of the United States or the Director General of Railroads the power to fix the venue , of actions against the railroads, while -the same were under Federal control?’ ”
After discussing this question which the court said was the crucial one, it was said: “It seems clear to us that Congress did not delegate to the executive the power claimed by appellant, but in apt language left the law as it was before the passage of the statute. Affirmed.”
The case went to the Supreme Court of .the United States and was there reversed. The court said: “The Supreme Court, of Mississippi overruled the plea in .abatement on the ground that Order No. 18 exceeded the powers conferred by Congress on the President and by him on the Director General. Whether the state court
It matters not how the error in making the Florida East Coast Railway Company instead of the Director General of Railroads, the party defendant was brought to the attention of the court, the order substituted the Director General of Railroads for the Florida East Coast Railway as defendant, and when that was done further proceedings were governed by General Order 18a of the Director General of Railroads.
In an action brought by an employee against the Missouri Pac. R. Co., a motion was made by the Railroad Company to substitute as defendant the Director General of Railroads. This substitution the court refused to make; but joined the Director General of Railroads as defendant. This the Supreme Court of the United States held to be error, and that the application of the Missouri Pac. R. Co. to be dismissed from the action and the Director General of 'Railroads substituted in its place should have been
It is contended by defendant in error that tbe Transportation Act approved February 26, 1920, authorized the bringing of this suit in Duval County.
Section 206 of the Transportation Act does not deal with venue but specifically refers to jurisdiction.
There is no question that the Circuit Court of the Fourth Judicial Circuit of Florida had jurisdiction to try this cause if the venue were properly laid, but as General Order No. 18a of April 18, 1918, contains a specific requirement that all suits shall be brought “in the county or district where plaintiff resided at the time of the accrual of the cause of action, or in the county or district where the cause of action arose,” the jurisdiction did not attach because the General Order was pot complied with as to the venue. Where a suit shall be instituted is a matter of venue only, and is not jurisdictional. Crystal River Lumber Co. v. Consolidated Naval Stores Co., 63 Fla. 119, 58 South. Rep. 129.
As applied to courts, jurisdiction is the power to try and determine a cause properly brought and prosecuted.
Venue relates to the rights of parties to a litigated cause as to the vicinage or place, i. e., the State, county or district, wherein the action should be maintained. Curtis v. Howard, 33 Fla. 251, 14 South. Rep. 812.
Section 206 of the Transportation Act, treating of jurisdiction, cannot be construed to nullify General Order No. 18a, that regulates and determines the venue where the Federal Government elects to be sued.
Rehearing
This cause coming on for consideration upon an application of the counsel for defendants in error for a rehearing of said cause, after due consideration the court finds that the application flagrantly violates the rule laid down by this court in repeated cases commencing with Smith v. Groom, 7 Fla. 180, regulating petitions for rehearing. This rule provides that: “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. ’ ’
This court has held also that the following are violations of the rule, that will cause dismissal of the 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 re-argues the cause in advance of a permit from the court for such rehearing. Texas Company v. Davidson, 76 Fla. 478, 80 South. Rep. 558.
The application for rehearing violates the rule in all of the particulars above named, and is, therefore, hereby dismissed.