The case arises on a petition for certiorari to review a circuit court affirmance of a civil court of record judgment, wherein the civil court of record judge set aside a jury verdict upon a motion for judgment non obstante veredicto by the defendant, where there was also pending a reserved ruling on a motion by defendant for a directed verdict. The trial court set aside the jury verdict because "the evidence adduced at the trial showed that the defendant did not make a direct contract to pay for the goods involved, but made only a guarantee."
The circumstances of this case are that A.K. Hilkemeyer, doing business as Dixie Hatcheries, petitioner here, plaintiff below (hereinafter called plaintiff) sued Latin American Air Cargo Expediters, Inc., respondent here, defendant below (hereinafter called defendant) for $2,600 which represented the sale price of a shipment of baby chickens. The ultimate purchaser of the chickens in South America had previously dealt with plaintiff through a transshipping agent, who paid for the chickens under a C.O.D. arrangement; and through defendant, who operated at that time under an arrangement not revealed in the record. Defendant is a transshipping agent, who in this instance received shipments over local air lines from the plaintiff and arranged for transferring the shipments to overseas air lines. Plaintiff claims that defendant entered into an oral agreement to directly assume the entire responsibility of paying him for this particular shipment. The defendant claims that it did not directly assume liability, but only accepted the goods for transshipment and agreed to operate as a paying agent for the ultimate purchaser. Plaintiff has made no attempt to recover from the ultimate purchaser.
This case must be examined and disposed of under rules developed by the Court to govern "common law" certiorari.
The writ of certiorari is issuable or not in the sound judicial discretion of the Supreme Court. Janet Realty Corp. v. Hoffman's, Inc., 1943, 154 Fla. 144, 17 So.2d 114. Although this case presents a close question it involves a serious enough departure from the essential requirements of law to warrant a favorable exercise of our discretion.
The considerations which would authorize a trial judge to direct a verdict are the same as those involved in a reserved motion for a directed verdict under Rule 2.7(b). Cf. Marsh v. Illinois Central R. Co., 5 Cir., 1949, 175 F.2d 498. A great variety of situations have brought forth numerous formulas for providing standards of proof for submission of evidence to the jury. The Supreme Court of the United States has said: "Nor is the matter greatly aided by substituting one general formula for another. It hardly affords help to insist upon `substantial evidence' rather than `some evidence' or `any evidence,' or vice versa. The matter is essentially one to be worked out in particular situations and for particular types of cases. Whatever may be the general formulation, the essential requirement is that mere speculation be not allowed to do duty for probative facts, after making due allowance for all reasonably possible inferences favoring the party whose case is attacked." Galloway v. United States, 1943, 319 U.S. 372, 395, 63 S.Ct. 1077, 1089, 87 L.Ed. 1458.
This Court's views have recently been recorded:
See for example, Oppenheimer v. Werner, Fla. 1950, 46 So.2d 870; Chaney v. Headley, Fla. 1956, 90 So.2d 297; Bryan v. Loftin, Fla. 1951, 51 So.2d 724; Mullis v. City of Miama, Fla. 1952, 60 So.2d 174. See also Sec. 54.17, Florida Statutes 1955, F.S.A.
The most recent expression of this Court on the general subject is found in New Deal Cab Co. v. Stubbs, Fla. 1956, 90 So.2d 614, 615. There we said:
We have re-examined the above quoted language in that case and the authorities cited. It was not necessary to the determination of the cause and was therefore obiter dicta. The italicized language correctly states the conditions under which a new trial may be properly awarded but the language which follows is used too loosely. It is important to make a distinction between situations where a trial judge can properly direct a verdict and situations where he can properly grant a new trial. "The considerations and legal principles that guide the judicial discretion in directing a verdict and in granting a new trial on the evidence are not the same." Gravette v. Turner, 1919, 77 Fla. 311, 81 So. 476, 477; Anderson v. Southern Cotton Oil Co., 1917, 73 Fla. 432, 74 So. 975, L.R.A. 1917E, 715; Florida East Coast Ry. Co. v. Hayes, 1914, 66 Fla. 589, 64 So. 274. The reasons for and a clear exposition of the distinctions appear extensively presented in Gravette v. Turner, supra, one of the cases cited as authority in the New Deal Cab Co. case. We clearly said in the Gravette case that where there was substantial evidence tending to prove the issue, it "should have been submitted to the jury for their finding on the facts, and not taken from them to be passed upon by the judge as a question of law." 77 Fla. 317, 81 So. 478. We also said,
The dividing line [a grey area at best] between judge and jury in situations like this would be totally indistinguishable from many other aspects of the more general problem of facilitating jural disposition of cases, if it were not for the requirement in our Constitution that "The right of trial by jury shall bee secured to all, and remain inviolate for-ever." Florida Constitution, Declaration of Rights, § 3, F.S.A. An organic provision similar to ours has been described as "designed to preserve the basic institution of jury trial in only its most fundamental elements, not the great mass of procedural forms and details, varying even then  so widely among common-law jurisdictions."
Reverting, now, to the case under immediate consideration the trial judge reasoned that the alleged oral guarantee would fail as an enforceable contract under Sec. 725.01, Florida Statutes 1955, F.S.A., the Statute of Frauds. Plaintiff focuses his argument here on this assumption and there is enough of the record here to support him since the defendant has filed no brief or supplemental transcript to offset what is before the Court. "The question of whether the promise was direct or collateral, that is to say, to whom credit was extended, is one of fact to be determined by the jury from the evidence adduced." Sanders v. Hodges, 1933, 109 Fla. 391, 147 So. 571, 572. An extended recitation in this opinion of the evidence on the issue of a direct or collateral promise by defendant to answer for the debt of another would serve no useful purpose. It is sufficient to say that testimony offered by three witnesses on this issue is conflicting and permits different reasonable inferences. The well-settled rule in Florida is that under such circumstances the issue should not be taken from the jury. E.g. Bryan v. Loftin, supra; Tooley v. Margulies, Fla. 1955, 79 So.2d 421; concurring opinion joined in by the Court in Townsend Sash Door & Lumber Co. v. Silas, Fla. 1955, 82 So.2d 158; Merwin v. Kellems, Fla. 1955, 78 So.2d 865.
For this reason, although it is a close question in this particular situation, we have exercised our discretion to issue the writ of certiorari. The order of the circuit court affirming the questioned order is quashed with directions to enter an order directing the trial court to reinstate the verdict of the jury and to reconsider a motion for a new trial if such was made and remains undisposed of.
TERRELL, C.J., and HOBSON and O'CONNELL, JJ., concur.