Brooks v. Owens

• Decision Date: 25 October 1957
• Citation: 97 So.2d 693
• Parties: Maxwell J. BROOKS, Petitioner, v. Larry OWENS, a minor by his next friend and natural guardian, Bernice Kleiser, Respondent.
• Court: Florida Supreme Court

Page 693

97 So.2d 693

Maxwell J. BROOKS, Petitioner, v. Larry OWENS, a minor by his next friend and natural guardian, Bernice Kleiser, Respondent.

Supreme Court of Florida.

Oct. 25, 1957.

James A. Dixon and Dixon, DeJarnette, Bradford & Williams, Miami, for petitioner.

John M. Kelley, Jr., and Shutts, Bowen, Simmons, Prevatt & Julian, Miami, for respondent.

O'CONNELL, Justice.

Maxwell J. Brooks, petitioner, was defendant in an action in the Circuit Court brought by the plaintiff, Larry Owens, a minor, by his next friend, Bernice Kleiser, arising out of an intersection collision between the defendant's automobile and the plaintiff-respondent's motorcycle. The parties will be referred to as plaintiff and defendant.

Defendant filed his answer to the complaint. He denied negligence and alleged contributory negligence. The plaintiff-respondent then took defendant's deposition, in which defendant was asked (1) whether the automobile involved was the only one owned by the defendant; (2) whether defendant had automobile liability insurance; and (3) what were the limits of the liability insurance.

Defendant refused to answer the above three questions and plaintiff made a motion he be required to answer. Defendant responded, answering the first two questions affirmatively, but refusing to answer the third. Grounds given by the defendant for his refusal were that disclosure of the policy limits would deprive him of liberty and property without due process of law and deny to him other constitutional rights guaranteed by the federal and state constitutions, and would subject him to oppression and embarrassment. He alleged the questions were propounded to him in bad faith, and their sole purpose was to enable the plaintiff to make a demand for settlement within the policy limits and thereby put pressure upon him to require settlement by his insurance carrier within such limits. He also contended the plaintiff did not show good cause for the relief prayed for in his motion, as required by, 30 F.S.A. Fla. Rules Civ. Proc. 1.28. Defendant concluded by saying the plaintiff had no rights in the policy of insurance unless and until he should recover judgment against the defendant and that the relief prayed for was not designed to lead to any admissible evidence, being wholly irrelevant and immaterial unless and until the plaintiff should have a judgment against defendant entered for him and such judgment remained unsatisfied.

A hearing was held on plaintiff's motion and defendant's response and argument of counsel was heard. The judge entered his order requiring the defendant to answer and, defendant having announced his intention not to comply, the judge then ordered that defendant's answer to the complaint be stricken and he be adjudged to be in default.

Defendant entered his notice of appeal and also filed the subject petition for certiorari addressed to the same order dismissing his answer and declaring him to to be in default.

If the defendant is entitled to review of the order complained of, it must be by certiorari and not by appeal. The order of default was not a final order, subject to appeal, as it does not meet the test set out in Slatcoff v. Dezen, Fla., 1954 72 So.2d 800, in that it does not indicate an end of judicial labor. This court long ago ruled that an order of default is not a final judgment. Coons v. Harllee, 1880, 17 Fla. 484; Blount v. Gallaher, 1886, 22 Fla. 92. See also 4 C.J.S. Appeal and Error § 155.

This court will review an interlocutory order in law only under exceptional circumstances. Where it clearly appears that there is no full, adequate and complete remedy by appeal after final judgment available to the petitioner, this court will consider granting the writ, as where the lower court acts without and in excess of its jurisdiction, or the order does not conform to essential requirements of law and may cause material injury throughout subsequent proceedings for which the remedy by appeal will be inadequate. Kauffman v. King, Fla., 1956, 89 So.2d 24; Huie v. State, Fla., 1956, 92 So.2d 264. See also 5 Fla.Jur. Certiorari Sec. 12.

We must determine, therefore, whether the facts of the instant case warrant the special dispensation of this court as prayed for in the petition. If the lower court erred in its ruling that the policy limits were a proper matter of discovery, but this petition were denied, defendant would have two alternatives. For one, he could do nothing further, whereupon a judgment would be entered against him, for his liability would be admitted by the default. A jury would assess the damages. Defendant would then be gambling on the amount of damages the jury would assess and on the possibility of having this court, on appeal, fail to reverse the trial court. This court, on the appeal, would not be reviewing the sufficiency of the evidence to convict the defendant of the negligence alleged, but would be reviewing the action of the trial court in striking defendant's answer and adjudging him to be in default. If this court reversed the trial court, defendant would then be gambling on whether a jury in a new trial would find him liable on the merits of the case. If this Court were to affirm the trial court's action, defendant would be adjudged liable as a matter of record, with no trial ever having been had on the merits. Under these circumstances, this gamble, whether or not this court would reverse the trial court, is one we do not find that defendant should be compelled to take. If legality of the trial court's action were determined before final judgment were ever entered, the defendant would not be subjected to such possible, subsequent injury in further proceedings to be had in the trial court.

As for the second alternative, defendant could comply by disclosing the policy limits and thus have his answer re-entered. If this were done, defendant contends, his constitutional rights against deprivation of liberty and property without due process of law and against unreasonable searches and seizures would be violated. If disclosure were properly ordered, the deprivation would have been with due process, and the search and seizure would have been reasonable, but if it were improperly ordered, we are inclined to agree with the defendant as to the constitutional violations.

Defendant also contends that if the discovery be allowed, the plaintiff would be in a position to 'entrap' the defendant's insurance carrier into the position whereby it could have asserted against it a claim for damages returned by the jury in excess of the policy limits due to its bad faith refusal to compromise within the policy limits. Defendant maintains that the sole purpose of plaintiff's request for the policy limits is to place him in a position to bring about such a result.

While we cannot agree that plaintiff's sole purpose is as contended above, or that the use of the word 'entrap' is proper in such case, we do not believe that the rules of civil procedure concerning discovery should be interpreted merely to aid the plaintiff in achieving such a result.

It is our conclusion, therefore, that the defendant presents to us a case qualifying for the review by this court at this time the interlocutory order in law of the lower court, since we are convinced that should defendant be compelled to wait for remedy by appeal irreparable harm would have already resulted.

This court, in Kilgore v. Bird, 1942, 149 Fla. 570, 6 So.2d 541, 544, held that the statutory proceedings for questions to be propounded by the plaintiff to be had in the progress of a lawsuit, are distinct from ordinary judicial proceedings; and if such statutory authority is illegally used or so abused as to cause an injury which cannot be adequately remedied by appeal after final judgment, and the statute affords no appellate review of the distinct statutory proceeding, certiorari may be applied before final judgment within the discretion of the appellate court, under the organic power of the Supreme Court given by the Constitution of Florida.

We have determined, on the general principles expressed above and on the specific authority of Kilgore v. Bird, supra, that if there was a violation of essential requirements of controlling laws, the reasonable result would be an injury to the defendant not subject to remedy by appeal. We must now determine whether there has been a violation of the law.

The controlling laws in question are the rules of civil procedure relating to discovery. The most pertinent rule is Fla. Rules Civ.P. 1.21(b) herein set out:

'(b) Scope of Examination. Unless otherwise ordered by the court as provided herein, the deponent may be examined regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the examining party, or to the claim or defense of any other party including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of relevant facts. It is not ground for objection that the testimony will be inadmissible at the trial of the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence. * * *'

Also of possible relevancy is Fla.R.Civ.P. 1.28, which reads as follows:

'Rule 1.28 Discovery And Production Of Documents And Things For Inspection, Copying Or Photographing.

'Upon motion of any party showing good cause therefor and upon notice to all other parties, and subject to the provisions of Rule 1.24(b), the court in which an action is pending, may (1) order any party to produce and permit the inspection and copying or photographing, by or on behalf of the moving party, of any designated documents, papers, books, accounts, letters, photographs, objects, or tangible things, not privileged, which constitute or contain evidence relating to any of...