Volume 59 — Florida Reports

This case was decided by the court En Banc. Writ of error to the Criminal Court of Record for Walton County. The facts in the case are stated in the opinion of the court.

This case was decided by the court En Banc. Writ of error to the Criminal Court of Record for Walton County. The facts in the case are stated in the opinion of the court.

<p>This case was decided by the court En Banc.</p> <p>Writ of Error to the Circuit Court for Alachua County.</p> <p>The facts in the case, are stated in the opinion of the court.</p>

This case was decided by Division A. Writ of error to the Circuit Court for Columbia County. The facts in the case are stated in the opinion of the court.

<p>On Rehearing.</p> <p>In a prosecution for larceny where the articles alleged to have been stolen are separate in kind and numbers, and their value is given only in the aggregate, proof of the ownership as alleged of some of the articles, and that such articles are of sufficient value to warrant the verdict and judgment, is sufficient.</p>

This case was decided by the court En Banc. Writ of error to the Criminal Court of Record for Walton County. The facts in the case are stated in the opinion of the court.

<p>This case was decided by the court En Banc.</p> <p>Writ of error to the Criminal Court of Record for Duval County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

This case was decided by Division A. Writ of error to the Circuit Court for Dade County. The facts in the case are stated in the opinion of the court.

This case ivas decided by Division A. Writ of error to tbe Circuit Court of Columbia County. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. Writ of error to the Circuit Court for Polk County. The facts in the case are stated in the opinion of the court.

<p>This case was decided by the court En Banc.</p> <p>Writ of error to the Criminal Court of Record for Escambia County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

This case was decided by tbe court En Banc. Writ of error to tbe Circuit Court for Jackson County. Tbe facts in the case are stated in tbe opinion of the court.

This case was decided by Division B. Writ of error to the Circuit Court for Liberty County. The facts in the case are stated in the opinion of the court.

This case was decided by the court En Banc. Writ of error to the Circuit Court for Suwannee County. The facts in the case are stated in the opinion of the court.

<p>Where the evidence in a case is such as to warrant the finding of the jury, and there is no certain' uncontroverted evidence which would authorize the appellate court to say that the verdict was excessive, the judgment will not be reversed on writ of error.</p>

This case was decided by Division A. Writ of error to the Circuit Court for Suwannee County. The facts in the case are stated in the opinion of the court.

This case was decided by the court En Banc. Writ of error to the Circuit Court for Suwannee County. The facts in the case are stated in the opinion of the court.

This case was decided by the court Eu Banc. Writ of error to the Circuit Court for Osceola County. The facts in the case are stated in the opinion of the court.

This case was decided by the court En Banc. Writ of error to the Circuit Court for Jackson County. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. Writ of error to the Circuit Court for St. Johns County. The facts in the case are stated in the opinion of the court.

This case was decided by the court En Banc. Writ of error to the Circuit Court for Jackson County. The facts in the case are stated in the opinion of the court.

This#case was decided by Division B. Writ of error to the Circuit Court for Duval County. Statement. The plaintiff in error sued the defendant in error in the Circuit court of Duval County in an action at law to recover the sum of $50,000.00 alleged to have been fraudulently had and received by the defendant of the plaintiff as commissions on the purchase price of certain real estate. There are six counts in the declaration.

<p>Statutory Construction—Statute Giving New Remedy Provided Same be Instituted Within Specified Time—The Time Thus Provided Enters Into and Becomes Part of the Right of Action Itself—Reviving Cause of Action Extinguished by Lapse of Time.</p> <p>1. Under the provisions of Section 2910, General Statutes of 1906, authorizing suits against railroad companies for violation of the rules, rates and regulations of the railroad commissioners, and providing that all suits.under this chapter shall be brought within twelve months after the commission of the alleged wrong or injury, the time thus limited is a condition precedent to the bringing of any such suit. Such limitation of time is not like an ordinary statute of limitation, affecting the remedy merely, but enters into and becomes a part of the right of action itself, and if allowed to elapse without the institution of the action, such right of action becomes extinguished and is forever gone.</p> <p>2. Chapter 5624, Laws of 1907, which undertook to amend said section 2910 of the General Statutes of 1906, so as to permit such suits to be brought within twelve months after the termination of suits brought by the railroad commission to enforce their rates, &c., does not and cannot have the effect of reviving a cause of action that accrued under the amended section of the statute and that had become extinguished by the lapse of time prior to the enactment of said amendatory statute.</p>

This case was decided by the court En Banc. ’ Writ of error to the Circuit Court for Leon County. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. Writ of error to the Circuit Court for Marion County. The facts in the case are stated in the opinion of the court.

This case was decided by the court En Banc. Writ of error to the Circuit Court for Duval County. The facts in the case are stated in the opinion of the court.

<p>1. The statute law authorizing Clerks to enter defaults are strictly construed.</p> <p>2. An order was made on 23rd February, 1909 sustaining a demurrer to pleas and defendant allowed until 10th March, 1909 to amend the pleas. The defendant did not amend its pleas as allowed and the Clerk entered a default on the said 10th March for the defendant’s failure so to do. On the 22nd March, 1909, at a regular term, without a judgment determining the plaintiff’s right to recover, the case was submitted to a jury to assess the plaintiff’s damages, and a judgment entered for the plaintiff on the verdict: Held, that this practice was not warranted by the statute law, or rules of practice in Common Law actions.</p> <p>3. The proper form of judgment in a case where the facts were, as stated on the foregoing headnote, is given in the opinion.</p>

This case was decided by Division B. Writ of error to the Circuit Court for Escambia County. The facts in the case are stated in the opinion of the court.

This case was decided by the court En Banc. Writ of error to the Circuit Court for St. Lucie County. The facts in the case are stated in the opinion of the court.

<p>1. In an action by a passenger against a railroad company allegations that the defendant in operating ' and running its trains did not stop long enough to allow the plaintiff a reasonable time to alight from the car, but carelessly and negligently started said train, and carelessly put said train in violent quick motion, which said careless and negligent act threw the plaintiff violently to the ground by means of which she was injured in a specified way, states a single cause of action.</p> <p>2. Where testimony covered by special pleas is admitted under a plea of general issue, the action of the court in striking the special pleas need not be reviewed, since no harm could have resulted from striking the special pleas.</p> <p>S. In an action to recover damages for a mere negligent injury, not charged to have been wilfully, wantonly or maliciously done, where the injury would not have occurred but for the negligence of the plaintiff even though the defendant was negligent as alleged, the plaintiff having proximately. contributed to the efficient cause of his own injury, cannot in general recover damages under the common law rule that where both parties are at fault the law will leave them to the consequences of their own wrong.</p> <p>4. To constitute such contributory negligence as bars recovery, the plaintiff’s negligence must have been a portion of the efficient proximate cause of the injury, and the defendant’s negligence must not have been wilful, wanton or malicious. If the injury was caused solely by the plaintiff’s negligence, of course the defendant is not liable.</p> <p>5. Public policy requires that every one shall exercise reasonable care and diligence for the protection of his own person and property; and when his failure to do this concurs with the mere negligence of another and proximately causes the injury there can be no recovery tinder the common law rule.</p> <p>6. The common law rule of non-liability of a merely negligent defendant when the plaintiff is guilty of contributory negligence, has been modified by the statute allowing a recovery, but requiring the damages to be apportioned, where the plaintiff and the defendant are both negligent, and the injury to one not an employee is caused by the running of railroad trains or machinery, or by any person in the employment and service of a railroad company. Such enactments are within the legislative power where the limitations imposed by the constitution are observed.</p> <p>7. The common law rule of duty and liability sustained by public policy does not make a common carrier an absolute insurer of the safety of its passengers, but for the purpose of stimulating efficiency in the carrier and of securing the safety and comfort of passengers in the interest of humanity and the general welfare, a common carrier is required to exercise the highest degree of care, foresight, prudence and diligence reasonably demanded at any given time by the conditions and circumstances then affecting the passenger and the carrier. This rule is not abrogated by the statute regulating the liability of railroad companies in certain cases.</p> <p>8. In an action for negligence the question whether the railroad company has exercised all ordinary and reasonable care and diligence is to be determined by a consideration of the duty imposed by law upon the company under the facts and circumstances of each case that arises.</p> <p>9. The care and diligence that are exercised in a given case might be all that is ordinary and reasonable with reference to one duty imposed by law because of the relation and eir- - . cumstances of the parties towards each other, but it may be regarded as not being ordinary or reasonable care and diligence or as being negligence with reference to another duty.</p> <p>10. Where a person is entitled to passage on a train, he has a right to the protection due a passenger until he has safely alighted by the proper egress.</p> <p>11. The unnecessary sudden jerking of a train while a passenger is rightfully alighting is negligence.</p> <p>12. If a passenger improperly attempts to alight from a car that is in motion and is injured in doing so, such attempt may be the sole cause of the injury and may bar a recovery; but where a passenger is properly leaving a car at her destination and as she is about to step to the ground from the usual egress, the car is suddenly and violently jerked or moved when the agents of the carrier should have known she was alighting it is negligence, and if injury to her results proximately therefrom, the plaintiff has a right of action under the statute even though she is also negligent, the recovery being apportioned according to the relative negligence.</p> <p>13. Ordinary prudence requires that a passenger shall not alight from a moving car, but if the exit is properly begun while the ear is stationary and the car is suddenly started with undue violence before the passenger alights, the carrier may be negligent and the passenger free from negligence.</p> <p>14. A charge that the plaintiff sues the defendant “in an action on the case and claims * * * damages for the negligence of the defendant in the oxieration of its train whereby the plaintiff was thrown from the steps of its passenger coach and injured as set out in her declaration which has been read in your hearing,” is merely a statement of the complaint as made, and does not assume the negligence of the defendant and is not a charge upon the facts.</p> <p>15. In an action by a passenger against a railroad company for negligently starting the train before the passenger could alight, a' charge that if the jury find from the evidence that when - the train stopped at her destination “the plaintiff in reasonable haste commensurate with her age and incumbrance of baggage directly proceeded to alight * * and that before she could clear herself from the steps of the train, the train was started with such violent motion as to throw the plaintiff to the ground and injure her, then you should find for the plaintiff,” is within the issues and is not erroneous because of the reference to the plaintiff’s baggage.</p> <p>16. A charge that it is the duty of a railroad company “to give a reasonably sufficient time at its stopping places for its passengers to safely alight from their trains,” is not error. It is not a too high degree of duty and is within the issues.</p> <p>17. To charge the jury “that a railroad company cannot promulgate an arbitrary rule for. the conduct of their passengers as will exempt them from liability inflicted by their sole negligence” is not error, particularly when the remainder of the charge makes the whole more clear and entirely fair to the carrier, the promulgation of a rule being testified to.</p> <p>18. It is not error for the court to charge the language of a statute applicable to the case.</p> <p>19. There is no error in the charge that after reasonable alighting time for passengers has elapsed the conductor of a train should then avoid all injury to a passenger that he “possibly can when he knows or sees that she is about to suffer some damage.”</p> <p>20. The evidence as to the length of time the train remained stationary being without conflict a charge “that the time required for a passenger to leave a train depends upon the circumstances of each particular case, “Whether the stop on the day of this accident was reasonably sufficient under the circumstances in evidence is a question for you to determine,” „ is not erroneous.</p> <p>21. Where the facts are not conceded and the testimony as to them is conflicting, the reasonableness of the time allowed for passengers to alight from a railroad train is not a question of law.</p> <p>22. It is not error to refuse to give a charge that is not entirely correct particularly when the substance of the requested charge is given in another instruction.</p> <p>23. The circuit court has authority to have a judgment entered in vacation after the disposition of a motion for a new trial properly made in the case and continued in term time.</p> <p>24. Where no errors of law appear and there is testimony to support the verdict, and it does not appear that the jury were not governed by the evidence in their finding,- the judgment will be affirmed.</p>

<p>This case was decided by Division B.</p> <p>Writ of error to the Circuit Court for Orange County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

This case was decided by the court En Banc. Writ of error to the Circuit Court for Marion County. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. Writ of error to the Circuit Court for Duval County. The facts in the case are stated in the opinion of the court.

This case ivas decided by Division A. Writ of error to the Circuit Court for Marion County. The facts in the case are stated in the opinion of the court.

<p>1. Section 2652 of the General Statutes of 1906 prohibits the transaction of any business by a corporation until certain specified requirements have been complied with and provides that if any corporation shall transact any business before complying with such requirements its incorporators and stockholders shall be personally liable for all of the corporation debts as if they were members of a general partnership and not stockholders of a corporation.</p> <p>2. The fact that creditors deal with and extend credit to a concern as a corporation does not estop them from enforcing the personal liability of the stockholders for failure to comply with the requirements of section 2652 of the General Statutes of 1906.</p> <p>3. The stockholders of a proposed corporation who execute a promissory note in the name of such corporation prior to. the issuance of the letters patent are liable as members of a general partnership for the amount of such note, under the provisions of section 2652 of the Statutes of 1906, and an action thereon may be maintained against them as partners.</p> <p>4. If pleas are so faulty and defective as to be wholly bad and to constitute practically no defense, or clearly tend to confuse the issue, as the case may be, so that the court would be warranted in striking out such pleas of its own motion, no reversible error is committed in sustaining a demurrer thereto, even though the proper method of attack might be by motion.</p> <p>5. The findings of a referee upon questions of fact, where the witnesses are examined before him, are entitled to the. same weight as the verdict of a jury. In neither the one case nor the other would an appellate court be warranted in disturbing such findings or verdict in reversing the judgment because the evidence adduced is conflicting.</p>

This case was decided by the court Eu Banc. Writ of error to the Circuit Court for Pasco County. The facts in the case are stated in the opinion of the court.

Tliis case was decided by Division A. Writ of error to the Circuit Court for Escambia County. The facts in the case are stated in the opinion of the court.

<p>1. Grftde turpentine that is collected in boxes cut in pine trees in a condition to be dipped up and used in the manufacture of spirits of turpentine and kindred products, is personal property.</p> <p>2. Where crude turpentine collected in boxes cut in pine trees is the subject of conversion and its ownership is sufficiently alleged, the ownership of the- trees or of the land is immaterial. ...</p> <p>3. Where the refusals to give several requested instructions that contain distinct propositions are excepted to as an entirety, and one of the requested instructions was properly refused, the court will not consider the other requested instructions.</p> <p>4. The statute authorizes charges given to be excepted to in a motion for a new trial, but the refusal to give requested instructions must be excepted to at the time.</p> <p>5. Where the authority under which a defendant claims his rights gives turpentine privileges on lands to January 1, 1908, and timber or saw mill privileges thereon to January 1, 1910, it is not error for the court to charge that the defendant had the timber rights “from January 1, 1910, subject to the plaintiff’s right to turpentine therein from the first day of January, 1908, until such time as timber shall be cut by” the defendant.</p> <p>6. Papers not appearing to refer to the subject of litigation are properly excluded, but documents under which rights in litigation are claimed are properly admitted in evidence.</p> <p>7. Where the trial judge does not certify that the bill of exceptions contains all the evidence adduced at the trial as provided by the rules, the sufficiency of the evidence to sustain the verdict cannot be considered by the Supreme Court.</p>

<p>This case was decided by the court En Banc.</p> <p>Writ of error to the Circuit Court for Lake County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

This case was decided by the court En Banc. Writ of error to the Circuit Court for Walton County. The facts in the case are stated in the opinion of the court.

This case was decided by Division B. Writ of error to the Circuit Court for Hillsborough County. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. Writ of error to the Circuit Court for Jackson County. The facts in the case are stated in the opinion of the court.

<p>1. The penalty provided in Section 2217 General Statutes preventing recovery by a contractor who has failed or refused to furnish a list of material men and laborers is confined to recovery under that act and does not apply to an ordinary action on the common counts.</p> <p>2. There was sufficient evidence to sustain the judgment.</p>

This case was decided by Division B. Writ of error to the Circuit Court for Hillsborough County. The facts in the case are stated in the opinion of the court.

This case was decided by the court En Banc. Writ of error to the Circuit Court for Escambia County. The facts in the case are stated in the opinion of the court.

This case was decided by the court En Banc. ■ Writ of error to the Circuit Court for Duval County. The facts in the case are stated in the opinion of the court.

<p>This case was decided by the court En Banc.</p>

This case was decided by the court En Banc. Writ of error to the Circuit Court for Marion County. The facts in the case are stated in the opinion of the court.

This case was decided by the court En Banc. Writ of error to the Circuit Court for Duval County. The facts in the case are stated in the opinion of the court.

This case was decided by Division B. Writ of Error to the Circuit Court for Jackson County. The facts in the case are stated in the Opinion of the court. •

<p>1. No-contract for tbe sale of any personal property, goods, wares or merchandise shall be good, unless the buyer shall accept the goods (or any part of them) so sold and actually receive the same, or give something in earnest to bind the bargain, or in part payment, or some note or memorandum in writing of the said bargain or contract be made and signed by the parties to be charged by such contract, or their agents thereunto lawfully authorized.</p> <p>2. In order to bring a contract for the sale of goods within this exception, it is necessary that the goods should have been received and also accepted by the buyer. Even the delivery of goods to the buyer, or the receipt of them by him, without an acceptance is not sufficient. Some act or conduct on the part of the buyer or his authorized agent, maintaining an intention to accept the goods as a performance of the contract, and to appropriate them, is required to supply the place of a written contract, or payment or part payment.</p> <p>3. A common carrier, whether selected by the seller or the buyer, to whom goods are intrusted without instructions to do anything but to carry and deliver them to the buyer, is no more than an agent to carry and deliver the goods, and has no implied authority to do the act required to constitute an acceptance and receipt on the part of the buyer and to take the case out of the statute of frauds.</p> <p>4. To give an account rendered the force of an account stated because of silence on the part of the party sought to be charged, the evidence must show the rendition of the account to the defendant.</p> <p>5. The plaintiff’s usual custom of sending out statements to different parties, including the defendant, the first of every month, showing the goods bought during the preceding month and the balance remaining over is not sufficient to establish the fact that certain bills in question were rendered to defendant.</p> <p>6. The entry in the seller’s account-book is not a memorandum signed by the party to be charged within the meaning of the statute of frauds.</p> <p>7. The court makes a harmless error in sustaining an improper objection to a question, where the witness had already given an answer to the question.</p> <p>8. Before counsel may be heard to complain of the action of the court in 'proceeding to judgment, notwithstanding his offer to introduce further testimony, he should have disclosed to the court what that testimony was and before this court may review it, the bill of exceptions should set it forth.</p> <p>9. Testimony offered by the plaintiff having been heretofore admitted in evidence and afterwards properly stricken, the court did not err in refusing to allow a repetition of it.</p>

This case was decided by the court En Banc. Writ of error to the Circuit Court for Lee County. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. Appeal from Circuit Court for DeSoto County. The facts in the case are stated in the opinion of the court.

This -case was decided by Division B. Appealed from the Circuit Court for Duval County. The facts in the case are stated in the opinion of the court.

<p>This case was decided by the court En Banc.</p> <p>Appealed from the Circuit Court for Walton County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

This case was decided by Division A. Appealed from the Circuit Court for Walton County. The facts in the case are stated in the opinion of the court.

This case was decided by the court En Banc. Appealed from the Circuit Court for Wakulla County. The facts in the case are stated in the opinion of the court.

This case was decided by the court En Banc. Appealed from the Circuit Court for Alachua County. The facts in the case are stated in the opinion of ibe court.

This case was decided by the court En Banc. Appealed from the Circuit Court for Dade County. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. Appealed from the Circuit Court for Marion County. The facts in the case are stated in the opinion of the court.

This case was decided by the court En Banc. Appealed from the Circuit Court for Calhoun County. The facts in the case are stated in the opinion of the court.

This case was decided by Division JB. Appealed from the Circuit Court for Santa Rosa County. The facts in the case are stated in the opinion of the court.

This case was decided by the court En Banc. Appealed from the Circuit Court for DeSoto County. The facts in the case are stated in the opinion of the court.

This case was decided by the court En Banc. Appeal from the Circuit Court for Duval County. The facts in the case are stated in the opinion of the court.

This case was decided by the court En Banc. Appeal from the Circuit Court for Calhoun County. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. Appealed from the Circuit Court for Manatee County. Statement.

This case was decided by Division B. Appealed from the Circuit Court for Santa Rosa County. The facts in the case are stated in the opinion of the court.

This case w^s decided by Division A. Appealed from the Circuit Court for Manatee County. The facts in the case are stated in the opinion of the court.

This case was decided by the court En Banc. Appealed from the Circuit Court for Lake County. The facts in the case are stated in the opinion of the court.

This case was decided by the court En Banc. Appealed from the Circuit Court for Santa Rosa County. The facts in the case are stated in the opinion of the court.

This case was decided by the court 'En Banc. Appealed from the Circuit Court for Hillsborough County. The facts in the case are stated in the opinion of the court.

This case was decided by Division B. Appealed from the Circuit Court for DeSoto County. The facts in the case are stated in the opinion of the court.

This case was decided by Division B. Appeal from the Circuit Court for Taylor County. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. Appealed from the Circuit Court for Escambia County. The facts in the case are stated in the opinion of the court.

This case was decided by Division A. Appealed from the Circuit Court for Hillsborough County. The facts in the case are stated in the opinion of the court.

This case was decided by the court En Banc. Appealed from the Circuit Court for Duval County. The facts in the case are stated in the opinion of the court.

This case was decided by Division B. Appealed from the Circuit Court for Duval County. The facts in the case are stated in the opinion of the court.

This case was decided by the court En Banc. Appealed from the Circuit Court for Hernando County. The facts in the case are stated in the opinion of the court.

<p>Tliis case was decided by Division B.</p> <p>Appealed from the Circuit Court for Walton County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

This case was decided by Division A. Appealed from the Circuit Court for Duval County. The facts in the case are stated in the opinion of the court.

<p>Appeal dismissed.</p>

This case was decided by Division A. Appealed from the Circuit Court for Sumter County. The facts in the case are stated in the opinion of the court.

<p>This case was decided by the court En Banc.</p> <p>Appealed from the Circuit Court for Hillsborough County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

This case was decided by Division A. Appealed from the Circuit Court for St. Lucie County. The facts in the case are stated in the opinion of the court.

This case was decided by the court En Banc. Appealed from the Circuit Court for Citrus County. The facts in the case are stated in the opinion of the court.

- This case was decided by Division B. Appealed from the Circuit Court for Duval County. The facts in the case are stated in the opinion of the court.

<p>This case was decided by the court En Banc.</p> <p>Appealed from the Circuit Court for Yolusia County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>1. Where an option in writing is given for the purchase of real estate, a tender of the purchase price within the specified time makes mutuality in the contract relations of the parties.</p> <p>2. In a contract for the sale of land the description of the land is'hufflcient when it is “all land owned by the said” vendor “located west and north of the South Fork of the Miami River and in” stated sections, township and range in a named county of the State, as by such a description the land may be definitely located.</p> <p>3. An improper specific prayer of a bill of complaint as to damages will not destroy equities admitted by a demurrer.</p> <p>4. Impertinent portions of an answer in equity are properly eliminated upon exceptions thereto.</p>

This case was decided by Division A. Appealed from the Circuit Court for Duval County. The facts in the case are stated in the opinion of the court.

This case was decided by the court En Banc. This is a case of original jurisdiction. The facts in the case are stated in the opinion of the court.

<p>This case was decided by the court En Banc.</p> <p>This is a case of original jurisdiction.</p> <p>Statement.</p> <p>An alternative writ of mandamus was issued here as follows:</p> <p>“In the Supreme Court of the State of Florida. The State of Florida</p> <p>To</p> <p>Atlantic Coast Line Railroad Company:</p> <p>GREETING:</p> <p>Whereas by a petition filed by pur Railroad Commissioners in our Supreme Court in the name of the State of Florida, through Louis C. Massey, as Special Counsel for our said Railroad Commissioners designated by them, it has been made to appear:</p> <p>1. That the Atlantic Coast Line Railroad Company is a railroad corporation existing under the laws .of the State of Virginia, which on the first day of July, 1902, became the owner of divers lines of railway in the State of Florida by purchase from the Savannah, Florida & Western Railway Company, which lines, with others since acquired in this State, particularly the Jacksonville Southwestern Railway extending from Jacksonville to New-berry, it operates as a common carrier of persons and property, including rough and dressed lumber, from points in this State to other points therein.'</p> <p>2. That the City of Jacksonville is an important station on some of the said lines of the Atlantic Coast Line Railroad Company, where it maintains and operates by virtue of ownership or of right by lease, contract or otherwise, extensive terminals, railroad yards and switching facilities for the reception, handling, transportation and delivery of property transported by it to and from the City of Jacksonville from and to other points in this State, and that such terminals, railroad yards and switching facilities, or some portion thereof, were maintained and operated by the Savannah, Florida & Western Railway Company, the predecessor in the title of the Atlantic Coast Line Railroad Company, since about the year 1884 to the time of the sale thereof as aforesaid, on July 1,1902. That other railroad companies whose lines enter the City of Jacksonville also maintain and operate like terminals, railroad yards and switching facilities for like purposes, as they or their predecessors have done for many years, and the said terminals and railroad yards, including those of the Atlantic Coast Uine Railroad Company, are all connected together by transfer tracks and switches, so that the terminal tracks and railroad yards of the City of Jacksonville cover a vast extent of territory in and around said city.</p> <p>3. That as hereinbefore set forth, the said railroad yards in the City of Jacksonville or a portion thereof have been maintained and operated for many years past by the railroads entering that city, and as far back at least as the year 1891 planing mills have been established within the said yard limits and accessible to the tracks therein, to which it was and is usual and customary for the railroad companies to switch upon order of the consignees, cars of rough lumber shipped to and arriving at the City of Jacksonville from other points in this State, for the purpose of dressing the same, and after dressing to switch the said cars of lumber to some other point in the yards designated by the said consignees.</p> <p>1. That in the year 1891, and from thence continuously until the year 1907 the said .railroad companies entering the city of Jacksonville aforesaid, including the Savannah, Florida & Western Bailway Company and its successor the Atlantic Coast Line Bailroad Company, made a charge, of two dollars per car for switching cars of rough lumber shipped to the said city, to a mill withyn the yards as aforesaid, and thence, after the dressing of the lumber, to some other point in the said yards for delivery, and this charge was the same, whether the switching movement of the car was over the tracks of one or more railroads; but about the autumn of the year 1907, the said railroad companies maintaining and operating the railroad yards at the said city increased the charge for the said service to five dollars per car if the switching was over the tracks of one railroad company only, and to seven dollars per car if it was over the tracks of two railroad companies.</p> <p>5. That upon the complaints of citizens of Jacksonville and of other parts of this State that the charges exacted as aforesaid by the railroad companies were exhorbitant and unreasonable, your petitioners gave due notice of their intended action and of the time and place of hearing, to all the railroad companies and to the persons interested, and pursuant to said notice held a session in the City of Jacksonville on December 8, 1908, at which a very full and exhaustive hearing of all the parties interested were had, and thereupon on December 19, 1908, your petitioners prescribed a rate for the said services in a new Rule to take effect January 1, 1909, and to be known as Rule 15-A of the ‘Rules Governing the Transportation of Freight,’ which is as follows:</p> <p>‘15-A. The charge for switching cars of rough lumber consigned to and arriving at the City of Jacksonville from points in this State to any planing mill in the Jacksonville yards, and thence, after lumber is dressed, to any point in the same yards, shall not be more than $2.00 per car; Provided, that when the said switching movement is over the tracks of more than one railroad, a charge of not more than $3.00 may be made. This rule shall not be interpreted as rescinding or modifying Rule 15 except as herein specifically provided.’</p> <p>6. That Rule 15 of the ‘Rules Governing the Transportation of Freight’ referred to in said Rule 15-A, is, and was at the time of making the order last aforesaid as follows:</p> <p>‘15. A charge of not more than $2.00 per car, without regard to its weight or contents, will be allowed for transporting, switching or transferring a loaded car from any point on any railroad to any connecting railroad, or to any warehouse, side-track or other point of delivery that may be designated by the consignee, within a distance of three miles from the point of starting, and no railroad company shall decline or refuse to transport, switch or transfer any car as above, or, to receive it from any connecting railroad for such purposes. When in the transfer, switching or transportation of a car between such points, it is necessary to pass over the track or tracks of any intermediate railroad or railroads, said maximum charge of two dollars shall be equitably divided between the railroads at interest. When a charge is made' for the transfer, switching or transportation of a loaded car between such points, no additional charge shall be made for the accompanying movement of the empty car in the opposite direction. Provided, That this rule shall not interfere with any prevailing legal rate for the transportation of freight between different stations; and shall not apply to any freight that does not pay a direct freight transportation charge in connection with a switching charge.’</p> <p>7. That the Atlantic Coast Line Railroad Company has entirely ignored and refused to charge and put into effect the rate prescribed in and by said Rule 15-A, but has charged and received since January 1, 1909, and is still charging and receiving the sum of five dollars for switching cars of rough lumber consigned to and arriving at the City of Jacksonville from points in this State, to a planing mill in the Jacksonville yards and thence, after the lumber is dressed, to a point in the same yards when the said switching movement is over its own tracks only, for which service under the said Rule 15-A it is entitled to charge and receive the sum of two dollars.</p> <p>8. That your petitioners, as the Railroad Commissioners of this State, and the people of this State are entirely without adequate remedy in the premises unless it be afforded them by the interposition of this Honorable Court through a writ of mandamus.</p> <p>NOW THEREFORE, We being willing that full and speedy justice be done in the premises, do command you, the Atlantic Coast Line Railroad Company forthwith to observe the rate prescribed in Rule 15-A of the ‘Rules Governing the Transportation of Freight’ by our Railroad Commissioners for switching cars of lumber over your own tracks only in the Jacksonville yards; that is to say, to charge and receive no more than the sum of two dollars per car for switching cars of rough lumber consigned to and arriving at the City of Jacksonville from points in this State, to any planing mill in the Jacksonville yards and thence, after lumber dressed to any point in the same yards, when the said switching movement is over your own tracks only; or that you appear before the Justices of our Supreme Court sitting within and for the State of Florida at the Court Room in the City of Tallahassee on the twenty-second day of June, A. D., 1909, at 10 o'clock A. M. of that day, and show cause why you refuse so to do, and have you then and there this writ.</p> <p>Witness the Honorable James B. Whitfield, Chief Justice of the Supreme Court of the State of Florida, and the seal of the said Supreme Court, at Tallahassee, the Capital, this Eighth day of June, A. D., 1909.</p> <p>(Seal) M. H. Mabry,</p> <p>Clerk Supreme Court, State of Florida.”</p> <p>The respondent filed a motion to quash the alternative writ of mandamus upon the following grounds:</p> <p>“First: Ho power is conferred by law upon the Florida Railroad Commissioners to make and enforce the rule set' forth in said alternative writ as ‘Rule 15-A,’ of the Rules Governing the Transportation of Freight.</p> <p>Second: That the effect of the enforcement of Rule</p> <p>15-A set out in the alternative writ would be to deprive the defendant of its property without due process of law, and therefore, in contravention of the Fourteenth Amendment of the Constitution of the United States.</p> <p>Third: The alternative writ shows the movement covered by said Rule 15-A is not a switching movement, and does not make provision for compensation for a switching movement or service, but shows that the movement covered by it is a transportation movement or service, and makes provision for a transportation service.</p> <p>Fourth: By order Ho. 218 set out in the alternative writ, whereby Rules Ho. 15 and Ho. 15-A are a part of one regulation, the said two rules taken together are so inconsistent and uncertain as to be incapable of enforcement.</p> <p>Fifth: The alternative writ shows that the movement covered by said Rule 15-A is not á switching movement, and does not make provision for compensation for a switching movement, or service, but shows that the movement covered by it is a transportation movement, or service, and makes provision for a transportation service, which provision is discriminatory against, and unreasonable, arbitrary and illegal as to the respondent, and other like railroad companies and common carriers, at Jacksonville, Florida, as against and in the case of like railroad companies and common carriers at other points in the State of Florida.</p> <p>Sixth: Rule 15-A produces an unjust and illegal discrimination in that it provides a particular and lesser rate for a particular class of manufacturers, shippers and consignees, to-wit, manufacturers of dressed lumber, at a particular point in Florida, to-wit, Jacksonville, Florida, as against other manufacturers, shippers and consignees of other products at the same point, Jacksonville, and as against manufacturers, shippers and consignees of the same and other products at other points in the State of Florida.</p> <p>Seventh: Rule 15-A shows upon the part of the Railroad Commissioners an arbitrary intent to discriminate, not only against manufacturers, shippers and consignees, other than manufacturers, shippers and consignees of dressed lumber, at Jacksonville, Florida, but also the same intent as against all shippers, manufacturers and consignees at other points than at Jacksonville, Florida, and a disposition to arbitrarily control the transportation, at Jacksonville, of dressed lumber, to the benefit of manufacturérs, shippers and consignees of dressed lumber at Jacksonville, regardless of law and the rules condemning irregularity and discrimination.</p> <p>7-a. That this rule sought to be enforced is unreasonable and unjust.</p> <p>Eighth: And for other grounds apparent upon the face of said writ. Wherefore, respondent prays that said writ be quashed.</p>

This case was decided by Division A. Appealed from the Circuit Court for Orange County. The facts in the case are stated in the opinion of the court.

<p>1. Where there is evidence to support the findings of fact and a decree thereon, and no error is made to appear, the decree will not be disturbed on appeal.</p> <p>2. Where one of the owners of property wrongfully excluded another owner from participation in the operation and benefits of the property, a decree that losses incurred in the operation of the property' during such exclusion, should not fall upon the excluded part owner, and that the excluded part owner was entitled to a rental value of his interest in the property while so excluded, will not be reversed where no error appears upon a consideration of the whole case.</p>

This case was decided by Division B. Appealed from the Circuit Court for Duval County. The facts in the case are stated in the opinion of the court.

<p>This case was decided by the court En Banc.</p> <p>Appealed from the Circuit Court for Dade County.</p> <p>The facts in the case are stated in the opinion of the court.</p>