Baggett v. Davis

• Decision Date: 27 June 1936
• Citation: 124 Fla. 701,169 So. 372
• Parties: BAGGETT v. DAVIS.
• Court: Florida Supreme Court

169 So. 372

124 Fla. 701

BAGGETT v. DAVIS.

Florida Supreme Court, Division B.

June 27, 1936

Error to Circuit Court, Orange County; Elwyn Thomas, Judge.

Action by Fred J. Davis against W. E. Baggett. Judgment for plaintiff, and defendant brings error.

Reversed.

COUNSEL

Dickinson & Dickinson, of Orlando, for plaintiff in error.

George P. Garrett, of Orlando, for defendant in error.

OPINION

BUFORD Justice.

Fred J Davis instituted an action for damages against W. E. Baggett in the circuit court of Orange county, Fla.

The cause of action was predicated upon an automobile accident that happened at or near Robbins Cabins, about one mile west of Geneva Ashtabula county, Ohio, when the defendant, while driving his automobile on a public highway of the state of Ohio, United States and Ohio route 20, then and there on said public highway, so negligently and carelessly drove and ran his automobile that by reason of said carelessness and negligence the said defendant ran the same into a certain automobile of the plaintiff, causing the plaintiff to be damaged in the particulars set forth in the amended declaration.

The amended declaration consisted of three counts.

The first count sought to recover for injuries and damages inflicted on plaintiff's automobile, depreciating its value.

The second count sought to recover because that by reason of the careless and negligent manner in which defendant operated his automobile, plaintiff, who was without fault at the time as a direct result of defendant's negligence and carelessness, sustained great physical injury, rendering plaintiff unconscious, causing him to lose much time from his work while in the hospital, causing him to sustain permanent physical injuries and suffer great bodily pain, and to sustain special damage because he had to pay hospital bills, doctor bills, his clothes were ruined, he lost much time, and earning capacity and divers earnings and income.

The third count was worded in exactly the same language as the second count, and in addition alleged that defendant's negligence and carelessness consisted not only of negligence in the ordinary course of driving, but by violating then and there the statutes of the state of Ohio governing the operation of automobiles on highways; that United States and Ohio route No. 20 is a much used, main market, intercounty, public highway running easterly and westerly to and through the city of Geneva, past Robbins Cabins, Ashtabula county, Ohio. This count then set out these statutes of the state of Ohio in full as follows:

Ohio General Code, 6310-22:

'Drivers of vehicles before turning, stopping or changing their course shall make sure such movement can be made in safety and shall cause signals to be made of their intention in a way visible outside the vehicle.'

Ohio General Code, § 6310-28:

"Right of way' means the right of a vehicle to proceed uninterruptedly in a lawful manner in the direction in which it is moving in preference to another vehicle approaching from a different direction into its path.'

Ohio General Code, § 6310-29:

'A vehicle joining the flow of traffic on a road or highway from a standing position, an alley, a building, or private property shall yield the right of way to all other vehicles.'

Ohio General Code, § 6310-30:

'For the purpose of enforcing the road regulations referred to in this chapter, the main thorough fare shall be understood to mean all sections of public roads and highways on which street cars or electric cars run and also all main market and inter-county highways within the state.'

Ohio General Code, § 12603-1:

'Whoever operates a motor vehicle on the public roads or highways without due regard for the safety and rights of pedestrians and drivers and occupants of all other vehicles, and so as to endanger the life, limb or property of any persons while in the lawful use of the roads or highways shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined as hereinafter provided.'

It was further alleged that these statutes were in full force and effect at the time of the collision; that 'plaintiff was traveling east on said highway, in the exercise of due caution, and without fault, and defendant was then and there parked with his automobile headed east along his right side of the paved highway, and as plaintiff was passing defendant, the defendant drove his said car without warning into the paved portion of the said highway in such a manner and at such a time as to cause the left front of his car to hook onto or come into contact with the right rear of plaintiff's car, thereby upsetting plaintiff's car on the paved portion of the highway and to skid along the said pavement in said upset condition, thereby injuring plaintiff'; which was in violation of the above quoted statutes.

To the amended declaration, defendant filed two pleas: (1) A plea of not guilty; and (2) a plea of contributory negligence, in that it was plaintiff's duty to operate his said automobile upon said public highway with care and caution and observe the position of other cars thereon; that notwithstanding said duty, plaintiff negligently and carelessly failed to use such ordinary care and caution, by reason of which the alleged injury, if any, was produced.

Issue was joined upon these pleas.

Trial of the cause was had on November 8, 1935, at which time evidence of both parties was heard. After hearing the argument of counsel and the instructions of the court, the jury returned a verdict in favor of plaintiff and assessed his damages at $5,000.

Final judgment was entered upon the verdict, from which the defendant took writ of error.

The defendant made a motion for new trial, embodying some of the grounds found in the assignment of errors, which grounds will be taken up in detail on disposing of the questions presented. The motion for new trial was denied by the court.

The first question is whether the court propely admitted in evidence copies of the statutes of the state of Ohio, under the certificate of the secretary of state of the state of Ohio. That certificate contained these statements:

'United States of America, State of Ohio

'Office of the Secretary of State, SS:

'I, George S. Myers, Secretary of State of the State of Ohio, and being the officer who, under Constitution and laws of said State is duly authorized and constituted the keeper of the statutes and laws of said State and authorized to use the Great Seal of said State, and duly authorized and empowered to authenticate exemplification of said statutes and laws of said State of Ohio, do hereby certify that the annexed instrument is a full, true, correct and complete copy of Sections 6310-22; 6310-28; 6310-29 and 6310-30 of the General Code of Ohio, and were in full force and effect on July 10th, 1933.

'I further certify that the said sections are in full force and effect in said State, and that said laws are now on file in my said office as such Secretary of State.

'That said exemplification is in due form and made by me as the proper officer, and is entitled to have full faith and credit given to it in every court and office within the United States of America.

'In testimony whereof I have hereunto attached my official signature, and caused the Great Seal of the State of Ohio, to be affixed, at the City of Columbus, this 16th day of March, A. D. 1935.

'[Great Seal of Ohio] George S. Myers,

'Secretary of State.'

Laws of another state must be pleaded and proved. Sidney v. White, 12 Ala. 728; Southern Express Company v. Hanaw, 134 Ga. 445, 67 S.E. 944, 137 Am.St.Rep. 227.

'Under the Constitutional provision requiring that full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state, and authorizing Congress to prescribe the manner in which such acts and records shall be proved (U.S.Const., art. 4, § 1), a law has been enacted providing that acts of the legislature of any state or territory or of any country, subject to the jurisdiction of the United States, may be authenticated by having the seal of such state, territory or country affixed thereto (28 U.S.C.A. § 687). It will be observed that this statute requires no other authentication or formality than that the seal of the State be affixed to the copy of the act to be proved. The seal itself imports absolute verity.' 4 Jones Commentaries on Evidence 3155, § 1721.

But mere unofficial volumes purporting to contain statutes or digests of statutes of another state are not admissible in evidence. See Yarbrough v. Arnold, 20 Ark. 592; Dixon v. Thatcher, 14 Ark. 141; Canfield v. Squire, 2 Root (Conn.) 300, 1 Am.Dec. 71; Magee v. Sanderson, 10 Ind. 261; Goodwin v. Provident S. L. Assurance Association, 97 Iowa, 226, 66 N.W. 157, 32 L.R.A. 473, 59 Am.St.Rep. 411.

The certificate of the secretary of state of the state of Ohio shows that the purported statutes of Ohio introduced in evidence were part of the 'General Code of Ohio'; but it is contended that there is nothing to show whether the 'General Code of Ohio' was an official publication of the statute law of the state of Ohio or whether it was a compilation of publication of some private individual, firm or corporation of the statute law of Ohio, without official standing. The authentication of the secretary of state would have been deficient in that it failed to state that the 'Code of Ohio' from which the purported statutes were taken, was an official publication of the Legislature of the state of Ohio, if the certificate had stopped there. The statement in the certificate that the purported statutes were in full force and effect in the state of Ohio on July 10, 1933, and are at the present...