TURF EXPRESS, INC., PETITIONER,
v.
EDWIN L. MASON, JERRY W. CARTER AND WILLIAM T. MAYO, AS MEMBERS OF AND CONSTITUTING THE FLORIDA PUBLIC SERVICE COMMISSION, RESPONDENTS

Fla. | 1967-04-05
No. 35772
CALDWELL, C. J., and DREW, THORNAL, and ERVIN, JJ., concur.
204 So. 2d 730 Florida Supreme Court (1967) Positive Treatment
Cited by 6 cases

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Synopsis

This case involves an appeal from a summary judgment granted to a brokerage firm against a customer concerning a mistakenly paid stock dividend.


Holding

The trial court erred in entering a summary judgment for the brokerage firm because the customer's pleadings denied receipt of the dividend, creating a genuine issue of material fact.


Facts & Procedural History

A customer sold stock through a brokerage firm. The corporation subsequently declared a dividend, which was mistakenly paid to the customer instead of…

The full statement of facts, procedural history, and disposition for this case are member content.

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Opinion of the Court
GRAESSLE, Circuit Judge.

GRAESSLE, Circuit Judge.

This case is here upon a Petition for Certiorari directed to the Florida Public *731Service Commission (Commission). Petitioner seeks a review by this Court of an Order and Amended Order entered by the Commission which granted an amended application of Van Gorp Van Service, Inc. (Applicant) for a certificate of public convenience and necessity authorizing the transportation in common carriage of thoroughbred race horses, and, in connection therewith, personal effects of attendants, and supplies and equipment (including mascots) used in the care of such animals, from, to and between all points and places in the State of Florida over irregular routes.

In its Petition for Certiorari, Petitioner presents four points, three of which involve some element of public convenience and necessity and the remaining point involving the admissibility and weight of certain testimony.

From an analysis of the record in this case, it appears that there are numerous thoroughbred farms located in the Ocala-Marion County area and numerous such farms in other parts of the State. There are several thoroughbred race tracks in Florida, but there are not sufficient facilities to quarter all of the horses during parts of the racing season, and, therefore, the horses must be transported to and from the race track each day. The number of such farms has been increasing and is expected to increase. The transportation of the thoroughbred horses in Florida falls into three categories, to wit: between breeding farms; between race tracks; and between breeding farms and race tracks.

The record shows that the applicant is well qualified to render the proposed service and holds extensive interstate authority and some intrastate authority in other states authorizing the same transportation sought here to be rendered. Public witnesses consisting of owners or trainers supported the application and testified to the excellent service rendered elsewhere by the applicant and if any other service were available they would use it rather than protestant’s.

The application was protested by several protestants whose services applicant’s witnesses testified to as being as good as the protestants could render and that some of protestants’ equipment was old and not up to the standards of the applicant’s equipment. Although there was no complaint regarding the promptness of the existing services, the evidence shows that promptness is but one factor to be considered in the shipment of these valuable thoroughbred race horses, with such other factors being the condition and type of equipment and prior experience of the drivers in hauling this live commodity.

As stated above, three of Petitioner’s points involve public convenience and necessity, to wit: is there substantial competent evidence showing public convenience and necessity; substantial, competent evidence that protestants were meeting a need; and was there substantial competent evidence that the grant of the application would not have an adverse effect upon existing facilities. This Court in De Groot v. Sheffield, 95 So.2d 912, 916, Fla. 1957, pronounced the standard of substantial competent evidence which will support orders of the Commission. See also Florida Rate Conference v. FPUC, 108 So.2d 601, Fla. 1959. We find no departure from the standards of the essential requirement of law with respect to applicant’s proof of public convenience and necessity and ability or inability to meet the existing need. This Court in Fleet Transport Company of Florida v. Mason, 188 So.2d 294, discussed the possibility of adverse effect upon existing facilities and we can find no departure from the essential requirements of law when measured by the standards we expressed in that case.

The only remaining point raised by Petitioner was the admissibility and weight of certain testimony. The involved testimony was that given by owners and trainers who are directly concerned with the care, treatment and transportation of the valuable animals involved. It appears *732that the involyed transportation is arranged and paid for by others, but in view of Section 120.27, Florida Statutes, F.S.A., and as pointed out by the Commission, there is no valid reason why this evidence in this case should not be admissible and given the weight that it was given by the Commission.

For the foregoing reasons, the Petition for Writ of Certiorari is denied.

It is so ordered.

CALDWELL, C. J., and DREW, THORNAL, and ERVIN, JJ., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • VAN Gorp van Serv., Inc. v. Mayo, 207 So. 2d 425 (Fla. 1968)
    …and necessity Nos. L-62 and 471. Petitioner, Van Gorp Van Services, Inc., is the holder of a competing motor carrier authority certificate No. 936 issued by the Commission and tentatively approved by this court in Turf Express, Inc. v. Mason, Fla., 204 So. 2d 730. Petitioner, as an interested party, was permitted to intervene by the Commission. The matter then proceeded through public hearings before the Commission in which petitioner participated, and thereafter the Commission entered its Order No. 7512 dis…
  • Application of Airport Commuter Serv., 35 Fla. Supp. 198 (Fla. P.S.C. 1971)
    …rden of going forward with evidentiary demonstration of its superior capacity to meet the transportation needs of the public to be served in the area involved.” More recently the Supreme Court followed this principle in Turf Express, Inc. v. Mason, 204 So. 2d 730, Fla. 1967, wherein the court found the applicant “well qualified” vis-a-vis the services of the protestants. Thus, an applicant is required to prove its ability, or superior ability, to provide the service proposed as a condition to the grant of th…
  • Fla. Limousine Serv., Inc. v. Bevis, 304 So. 2d 105 (Fla. 1974)
    …blic interest and should stimulate service and encourage aggressive internal cost reduction in operations to the benefit of the public. Order 9355, Docket 70449-CCT, Fred Womble; Order 7237-A, Docket 8333-CCT, Van Gorp Service, Inc., Affirmed [Fla.] 204 So. 2d 730. The issue raised by the protestants in their motion for directed verdict that this Commission cannot grant authority for an operation such as is proposed herein was resolved against the protestants by the Florida Supreme Court in the case of Dayton…

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