Cleary Bros. Const. Co. v. Phelps

• Court: Florida Supreme Court
• Citation: Cleary Bros. Const. Co. v. Phelps, 156 Fla. 461, 24 So.2d 51 (Fla. 1945)
• Decision Date: 19 October 1945
• Parties: CLEARY BROS. CONST. CO. v. PHELPS.

24 So.2d 51

156 Fla. 461

CLEARY BROS. CONST. CO. v. PHELPS.

Florida Supreme Court

October 19, 1945

Rehearing Denied Dec. 11, 1945.

Appeal from Circuit Court, Monroe County; Ross Williams judge.

McKay, Dixon &amp DeJarnette, of Miami, and Parker & Foster, of Tallahassee, for appellant.

Liddon & Fee, of Fort Pierce, and T. W. Conely, Jr., of Okeechobee, for appellee.

THOMAS, Justice.

A suit was brought in Monroe County by appellee, a widow, to recover from appellant damages for the loss of her husband, and eventually the cause reached an issue and was tried, resulting in a verdict for $35,000.

No bill of exceptions is brought here, for reasons appearing in affidavits presented to the court at the time the motion for a new trial was argued. From these, executed by Mr. H. Reid DeJarnette, Judge Raymond R. Lord, and Miss Ruth Thompson, the following situation is unfolded: Mr DeJarnette, in behalf of his firm, conducted defendant's case both during settlement of the pleadings and the trial of the issues before the jury. As the time for the trial approached he associated Judge Lord and Mr. Allan B. Cleare, of Key West, to assist him. The Key West attorneys were requested to arrange for the services of a 'court reporter,' and they employed Miss Ruth Thompson, who took shorthand notes of the proceedings. The day after the verdict was rendered all attorneys for the defendant conferred in Key West in preparation for the presentation of a motion for new trial. It seemed imperative to have a transcription of the notes; so Miss Thompson was reached on the telephone and requested to furnish it immediately. She agreed to begin the tesk that very day. Three days later Mr. DeJarnette telephoned Judge Lord and urged him to speed the work. A week passed, and again Judge Lord was called and told that the record should be completed by the following day, that being the last day notice could be given of the hearing on the motion for new trial. Judge Lord gave the assurance that the transcript would be in the mail that afternoon, but on the following morning he advised Mr. DeJarnette that he had been informed by the stenographer that her notes had been lost. It appears from one of the affidavits that the stenographer was the secretary of William v. Albury, an attorney in Key West, who on the morning the trial began appeared as counsel assisting attorneys for the plaintiff.

The first question posed by appellant challenges the propriety of the order denying the motion for new trial where (1) the stenographic notes of the proceedings of the trial were lost, (2) the loss was occasioned 'through no fault of the defendant or its counsel,' (3) it was impossible to secure a record of such proceedings, and (4) the verdict was excessive. There can be no doubt of the verity of the first premise. The second is also correct so far as the direct connection of defendant and its counsel with the loss is concerned. The third cannot be accepted as entirely accurrate because we are not aware from the record of any effort to settle the bill of exceptions, even though stenographic notes of the trial proceedings were unavailable. See Chapter 59, Florida Statutes, 1941, and F.S.A. The quality of the fourth, which forms the basis of the only other question we shall consider and discuss, will be deferred for the moment.

The kernel of appellant's contentions, exclusive of the objection to the amount of the verdict, is that, to quote its brief, it was 'deprived of the opportunity to present to this court a record of the trial proceedings in the lower court so that this court may determine whether on the entire record there has been a miscarriage of justice.' To support the position appellant cites several cases relevant to the general proposition that loss of notes of the proceedings will warrant a new trial. The first of these is Scharff et al. v. Holschbach et al., 220 Mo.App. 1139, 296 S.W. 469.

There the court held the destruction of notes of voluminous testimony, making impossible the construction of the record without them, justification for a new trial. In that case attempt had been made to compile the record, but this was found unfeasible, and even counsel for the victors in the suit had stated that he could not undertake to give an accurate account of the testimony he had offered. It is significant that the court referred to the voluminousness of the record. Among cases mentioned in this decision was Larson et al. v. Shockley et al., 231 S.W. 1030, where the court of appeals of Missouri had refused to reverse and remand in an appeal from an order denying the motion for new trial made on the ground of the loss of the stenographer's notes. The reason for the action was that appellants had not been diligent, had not tried to prepare a bill of exceptions without the notes.

In Woods et al. v. Bottmos et al., Mo.App., 206 S.W. 410, 411, cited also in Scharff v. Holschbach, supra, it is shown in the opinion that the stenographer had taken down the proceedings and that his notes were 'preserved in the courthouse,' which burned before the time expired to complete the transcript. The facts reflected in Todd v. Security Ins. Co., Mo.App., 206 S.W. 412, also referred to in Scharff v. Holschbach, supra, were strikingly similar. It was the duty of the court stenographer to preserve the proceedings which he had taken in shorthand, but they were totally destroyed when the courthouse where they were deposited burned. Every effort had been made on the part of the defendant to secure a bill of exceptions, but the evidence was so lengthy that the record could not be made from memory. The court observed that the destruction was a misfortune for which the defendant was in nowise to blame. In each of these cases it was ordered that a new trial be granted.

The next case relied upon by appellant is Reynolds v. Romano, 96 Vt. 222, 118 A. 810, where a new trial was awarded, it having been demonstrated that a transcript was not obtainable because the 'stenographic reporter, an official of the court,' had removed from the jurisdiction of the court, was not under control of the court, and was not disposed to recognize any obligation to furnish the transcript.

We pass to Coan v. Plaza Equity Elevator Co., 60 N.D. 51, 232 N.W. 298, 299, where a new trial was ordered because the 'official court reporter' died before his notes were transcribed, and inasmuch as he used a 'different' system, a transcription could not be procured.

The Supreme Court of Indiana, Indianapolis Life Ins. Co. v. Lundquist, 222 Ind. 359, 53 N.E.2d 338, 343, instructed the lower court to grant a reasonable time to submit a bill of exceptions where the notes of the official court reporter, 'an arm of the court,' had disappeared.

The Civil Court of Appeals of Texas in Fire Ass'n of Philadelphia v. McNerney, 54 S.W. 1053, 1054, decided, where a charge given at the trial was lost by fire, together with many other papers, that 'a party should not be deprived of his rights on appeal by loss of the record due to an accident not chargeable to him.' (Italics furnished by us.)

In Shafer v. King, 82 Colo. 258, 259 P. 1042, 1043, absence of a complete transcript due to the incapacity of the 'trial court reporter' was held sufficient reason to affirm an order setting aside the judgment.

The Supreme Court of Oklahoma, Harris et al. v. First National Bank of Pryor Creek, 140 Okl. 269, 282 P. 1097, ordered a new trial when it was made to appear that the 'court reporter' could not, because of physical inability, furnish a transcript.

The 'court reporter,' in Gibson et al. v. City of Chickasha, 171 Okl. 284, 43 P.2d 95, 96, advised the attorneys that he was unable 'to prepare a case-made' because his notes had been lost in a flood, and a new trial was ordered because the loss was not attributable to counsel. This view was influenced largely by a statute providing that 'when without fault of complaining party it becomes impossible to make case-made' there is ground for new trial. The same court in City of Duncan v. Abrams et al., 171 Okl. 619, 43 P.2d 720, held, however, that a party could not avail himself of the statute unless it appeared that it was impossible to make the case-made without the transcript. Here the 'reporter' died before translating his notes.

In Hodge & Mattheis v. Vermont Stone Products Corporation, 113 Vt. 491, 37 A.2d 183, the question before the court was not one of loss or failure to transcribe notes, but failure of the trial judge to sign the bill of exceptions within the required time due to his illness, a contingency held not imputable to petitioner.

And finally appellant refers us to Hitt et al. v. Carr et al., 77 Ind.App. 488, 130 N.E. 1, 6, where the Supreme Court of Indiana invoked the familiar doctrine that 'whenever by fraud, accident, mistake, or otherwise, an unfair advantage has been obtained in a proceeding at law, and it is against conscience to make use of such advantage, a court of equity will restrain the party from making use of the same * * *.' Evidently the advantage sprang from a failure on the part of a circuit court clerk.

We have digested, albeit briefly, all cases cited by appellant except James v. French, 5 Pa. Co. Ct. R. 270, which we cannot locate.

Many circumstances are prominent in these decisions, such as diligence exercised by counsel; impracticability of preparing a bill of exceptions without the reporter's notes voluminosity of the file; impossibility because of loss by flood or fire; incapacity of the reporter or his failure to make the transcription. But they are not present in the instant case. For instance, in the matter of diligence of counsel, it cannot be disputed that they were quite attentive in their earnest efforts to procure the...