Atlantic Coast Line R. Co. v. Holliday

• Decision Date: 07 February 1917
• Citation: 73 Fla. 269,74 So. 479
• Parties: ATLANTIC COAST LINE R. CO. v. HOLLIDAY.
• Court: Florida Supreme Court

74 So. 479

73 Fla. 269

ATLANTIC COAST LINE R. CO. v. HOLLIDAY.

Florida Supreme Court

February 7, 1917

Error to Circuit Court, Hillsborough County; F. M. Robles, Judge.

Action by Sherman Holliday against the Atlantic Coast Line Railroad Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Syllabus by the Court

SYLLABUS

Where a writ of error purports to be taken to a final judgment, and no such final judgment as will support a writ of error appears in the transcript, the appellate court should dismiss such writ whether a motion is made for that purpose or not but, in order to warrant the court in acting ex mero motu in the matter, such insufficiency or invalidity must appear on the face of the judgment itself or be affirmatively shown by the transcript; if evidence aliunde is necessary, the opposing party should file a motion to dismiss and introduce such evidence.

In this state there is no statute or rule of court requiring each separate judgment rendered in open court in term time to be singed either by the judge or clerk.

Section 1831 of the General Statutes of 1906 provides that the clerk of the circuit court 'shall keep minute books, in which he shall keep regular and fair minutes of all the proceedings of the circuit court, and of the judge, in term or vacation which shall be signed by the judge before the adjournment of each term.'

The better practice, as a general rule, is for the entry of a judgment rendered in term time to follow the verdict in the minutes of the court, as the date thereof would then be readily apparent, which is important, as section 1699 of the General Statutes of 1906 provides that all writs of error to judgments in civil actions shall be sued out and taken within six months from the date of such judgment.

A judgment in an action at law is rendered when it is entered or recorded in the minutes of the court during term time, or when in vacation it is put in form for such entry or record and is signed by the judge.

Where the transcript shows that a case came on for trial before a jury on the 3d day of January, 1916, that a verdict was returned therein on the 6th day of such month, that the bill of exceptions therein was settled and signed on the 29th day of April, 1916, that a final judgment in sufficient form was rendered and entered in the minutes of the court, but it does not appear on what day or month such judgment was rendered or entered, and that a writ of error to such judgment was sued out on the 10th day of April, 1916, this judgment is such a final judgment as will support the writ of error, and the appellate court will not dismiss such writ of error ex mero motu.

It is the duty of an attorney at law to take all such steps as may be necessary for the due entry and enrollment of a judgment to which his client is entitled; and his neglect of such duty may render him liable for any loss sustained by the client.

Where one of the assignments of error is based upon the overruling of the demurrer to the declaration, the better practice is for the plaintiff in error to discuss such assignment first in his brief for the reason that, where there is no sufficient declaration in a case, and a demurrer should have been sustained thereto, the other questions in the record are not open for the consideration of the appellate court.

While an assignment of error based upon the overruling of the demurrer interposed to the declaration is not required to designate or specify the particular grounds of the demurrer relied on, the plaintiff in error will be confined to the grounds stated in the demurrer and argued in the appellate court, the grounds thereof not argued being treated as abandoned, the only exception thereto being where there is an omission in the declaration of allegations of substantive facts which are essential to a right of action, so that the declaration wholly fails to state a cause of action.

In actions for negligent injuries it may be necessary to allege only the relations between the parties out of which the duty to avoid negligence arises, and the act or omission that proximately caused the injury, coupled with a statement that such act or omission was negligently done or omitted.

A declaration should contain sufficient allegations of all the facts that are necessary to state a cause of action. As a general rule, only ultimate facts need be alleged.

Inquiry into collateral matters, on the cross-examination of a witness, should not be permitted unless there is reason to believe that it may tend to promote the ends of justice and it seems essential to the true estimation of the testimony of the witness by the jury.

The evidence adduced in an action should be confined to the issues, and a witness cannot be cross-examined as to any fact which is collateral or irrelevant to the issue merely for the purpose of contradicting him by other evidence if he should deny it, thereby to discredit his testimony.

No error is committed by the trial court in refusing to permit a witness, on his cross-examination, to answer a question which is not in cross of any matters elicited on the direct examination, and when the answer thereto, whichever way it might be, would not tend to prove the issues as made by the pleadings.

Objections are properly sustained to questions which seek to elicit testimony outside of the issues in an action.

Technical errors either in the giving of charges or instructions or in the refusal of requested instructions will not be sufficient to work a reversal of the judgment, if it appears that such errors could not reasonably have been prejudicial to the plaintiff in error and did not deprive it of any fundamental right to which it was entitled.

Even though both the plaintiff and the defendant ignore a statute and proceed as though such statute did not exist or had no applicability, and fail to bring the same to the attention of the trial judge, by whom it was also evidently overlooked, if such statute is applicable and controlling, it is the duty of an appellate court to take judicial cognizance of it.

Notwithstanding that an action at law may have been tried in part upon an erroneous or immaterial issue, such immaterial issue will not work a reversal of the judgment rendered against a defendant when it appears that such immaterial issue was brought about by the filing of a plea by the defendant, upon which the plaintiff joined issue, and that the case was also tried upon other issues which were material and relevant, that the rights of the defendant were not thereby prejudiced, and that the rights of the parties litigant could be and were determined upon the other issues which were submitted to the jury.

Chapter 6521, Acts 1913, defines and enlarges the liability of employers for injuries to employés engaged in the hazardous occupations therein stated, and the language of the statute should be given its proper meaning and effect.

The term 'engaged in * * * railroading,' as used in chapter 6521 of the Laws of Florida (Acts 1913, vol. 1, p 383), is sufficiently comprehensive to apply to the liability of a railroad company to an employé whose duty it was under the terms of his employment to care for and look after a large number of artificial lights, situated in the yards and between and adjacent to the tracks of such railway company, and to see that such lights were kept burning and the lamps thereof properly filled in the daytime and in the nighttime.

Under section 3150 of the General Statutes of 1906, an employé who is not 'without fault or negligence' cannot recover for damages 'caused by negligence of another employé,' while under chapter 6521, an employé who is 'injured in part through his own negligence and in part through the negligence of another employé' may recover damages from the employer, unless both employés were fellow servants and they were 'jointly engaged in performing the act causing the injury.'

Even if an employé of a railroad company, whose duty it was under the terms of his employment to care for the artificial lights of such company situated in the yards, and the conductor and engineer engaged in operating a train of the railroad company could be said to be fellow servants, such fact would not preclude such employé from recovering damages for personal injuries inflicted on him through the negligence of the railroad company, even if the proofs adduced established the fact that such employé's own negligence contributed in part to such injury, when such conductor and engineer and the plaintiff employé were not 'jointly engaged in performing the act causing the injury.'

Where chapter 6521 of the Laws of Florida (Acts 1913, vol. 1, p. 383) controls and is applicable in an action, assumption of risk is not permissible as a defense, being expressly prohibited by section 4 of such chapter.

When there is substantial legal evidence to support the verdict, and there is nothing to indicate that the jury misapplied the law, and it does not appear by an overwhelming preponderance of the weight of the evidence or otherwise that the jury were not governed by the evidence in making their finding, the appellate court will not reverse the judgment on the ground that the verdict is not supported by the evidence.

The credibility and probative force of conflicting testimony are for the determination of the jury.

Evidence examined, and found sufficient to support the verdict rendered.

COUNSEL Sparkman & Carter, of Tampa, for plaintiff in error.

Dickenson & Dickenson, of Tampa, for defendant in error.

OPINION

SHACKLEFORD J.

Sherman Holliday brought an action at law against the Atlantic Coast Line Railroad Company, a corporation, for the recovery of damages for personal injuries received by the...