Dudley v. Harrison, Mccready & Co.

CourtUnited States State Supreme Court of Florida
Writing for the CourtBROWN, Justice.
Citation173 So. 820,127 Fla. 687
Decision Date16 April 1937
PartiesDUDLEY et al. v. Harrison, Mccready & Co. [*]

173 So. 820

127 Fla. 687

DUDLEY et al.
v.
Harrison, Mccready & Co.
[*]

Florida Supreme Court

April 16, 1937


En Banc.

Action by Mildred Dudley, joined by her husband, George Dudley, and George Dudley, individually, against Harrison, McCready & Co. Judgment in favor of the defendant, notwithstanding a verdict for the plaintiffs, and the plaintiffs bring error.

Reversed and remanded with directions.

ELLIS, C.J., and TERRELL, J., dissenting. [173 So. 821] [127 Fla. 689] Appeal from Circuit Court, Dade County; H. F. Atkinson, judge.

COUNSEL

Patterson, Blackwell & Knight, Dewey Knight, and W. Clinton Green, all of Miami, for plaintiffs in error.

Knight, Pace & Paine and Snedigar & Baya, all of Miami, for defendant in error.

OPINION

BROWN, Justice.

This was an action by wife and husband for damages for personal injuries to the wife. While the respective claims of the wife and the husband as to the damages sustained by each as a result of the injury to the wife should have been claimed in separate counts, nevertheless the declaration stated a cause of action, and the defect being formal, the demurrer thereto was properly overruled by the trial court. The case was tried upon the plea of the general issue and two pleas of contributory negligence. The jury's verdict was for the plaintiffs, separately assessing the damages found to have been sustained by each of the plaintiffs, the wife and husband respectively. The court denied defendant's motion for new trial and in arrest of judgment, but granted its motion for judgment non obstante veredicto, and entered judgment in favor of the defendant. In said judgment the trial court stated that it had granted the motion for judgment notwithstanding the verdict, it appearing to the court that the pleas of the defendant set up a meritorious defense and were upon the trial fully sustained, and not met by plaintiffs, notwithstanding the jury's verdict to the contrary. These pleas, of course, presented [127 Fla. 690] issues of fact, which the court had submitted to the jury for their determination.

Under this state of the record, motion for judgment non obstante veredicto was not an available remedy, and the court erred in granting it. By granting this motion and rendering final judgment in favor of the defendant, the court itself finally determined, adversely to the plaintiffs, an issue of fact which the plaintiffs, had the right to have determined by a jury. If the instant verdict was not in the opinion of the court justified by the evidence, on any of the vital and material issues of fact presented by the pleadings, the granting of a new trial would have [173 So. 822] been an appropriate remedy. Or, before the case was submitted to the jury, if the defendant had clearly and unquestionably proven its pleas, a motion for an affirmative charge or an instructed verdict in favor of the defendant might properly have been made and granted.

The learned trial judge doubtless thought he was justified in granting the defendant's said motion by a paragraph in the able opinion of Mr. Chief Justice Ellis in the case of Pillet v. Ershick, 99 Fla. 483, 126 So. 784, 785, reading as follows:

'A judgment in favor of the defendant notwithstanding the verdict would have been improper, not only because there was evidence to support the plaintiff's declaration but because a judgment of that kind is applicable, if at all in this state, where a plea setting up a meritorious defense has been fully sustained and not met by the plaintiff, or where the declaration fails to state a cause of action but a verdict is nevertheless found in favor of the plaintiff. 14 Stand.Ency.Proc. 959; 33 Corpus Juris 1181.'

It will be observed that the rule referred to by the writer of that opinion was not held to be actually applicable in [127 Fla. 691] this jurisdiction, the language used being, 'is applicable, if at all in this state,' etc. Then immediately after the above-quoted paragraph the following paragraph appears:

'The common-law rule that a motion for such a judgment cannot be interposed by a defendant obtains in many jurisdictions and has not been abolished by statute nor relaxed by decisions of this court except in so far as section 4615, Comp.Gen.Laws 1927, as construed by this court, may be considered an abandonment or relaxation of the rule.'

Indeed, the opinion and decision referred to held that the trial court was without error in denying the motion interposed in that case for verdict non obstante veredicto. In the preceding portion of the opinion, in referring to the contention that said motion should have been granted, it was said: 'The last proposition rests upon the assertion that according to the evidence as developed in the plaintiff's case his injuries were attributable either to his own neglect or that of some person other than the defendant.' The opinion concludes with these words: 'No error appearing in the record, the judgment is affirmed.'

It will also be noticed that the opinion in the case of Pillet v. Ershick cites 33 C.J. 1181, where the following appears:

'Defendant is entitled to a judgment non obstante veredicto where plaintiff's pleadings are insufficient to support a judgment in his favor, as where the declaration states no cause of action, or where plaintiff fails to reply to a good plea of new matter, but not where plaintiff's pleadings show a good cause of action in him, and avoid the defense pleaded.'

This quotation is confined to the pleadings, and nowhere refers to the evidence.

And in the case of Pillet v. Ershick, this writer wrote a concurring opinion, joined in by Justices Whitfield and [127 Fla. 692] Strum, which was not in conflict with the majority opinion as I then understood, and now understand it, and which reads:

'Originally, at common law, a judgment non obstante veredicto could be entered only when the plea confessed the cause of action and set up matters in avoidance which were insufficient to constitute a defense or bar to the action. 33 C.J. 1178.

'As stated in the opinion of Mr. Justice Ellis, the strict common-law rule was that a motion for judgment non obstante veredicto could only be interposed by a plaintiff, but this rule appears to have been relaxed in the case of Williams v. Hines, 80 Fla. 690, 86 So. 695, where, under the somewhat peculiar facts of that case, this remedy was held available to the defendant. It was also the rule at common law that a judgment non obstante veredicto must be based solely upon matters appearing upon the face of the record, and that the evidence could not be looked to in determining a motion for such a judgment. It was not therefore the appropriate remedy where a verdict was against the weight of, or unsupported by, the evidence. 11 Ency. of Pldg. and Prac., 917; 33 C.J. 1183. It is thus apparent that a judgment non obstante veredicto at common law was merely one species of a judgment on the pleadings. Accordingly, it was an easy step to relax the rule and hold that a judgment might be rendered on the pleadings for either party entitled to it thereby, irrespective of the verdict, and this is now the rule in many jurisdictions; in fact, it appears to be the prevailing rule. 33 C.J. 1179, 1180; 11 Ency. of Pldg. and Prac. 914, 1030. A general treatment of this subject will be found in 33 C.J. 1177-1188, and Crandall's Fla.Common Law Prac. § 490; and some of our [173 So. 823] own cases dealing with the appropriateness of this remedy where parties have [127 Fla. 693] gone to trial upon pleas of confession and avoidance setting up immaterial issues are: Hyer v. Vaughn, 18 Fla. 647; Jones v. Shomaker, 41 Fla. 232, 26 So. 191, and People's Nat. Bank v. Magruder, 77 Fla. 235, 81 So. 440. See, also, Gregory v. McNealy, 12 Fla. 578, and Edgar v. Bacon, 97 Fla. 679, 122 So. 107; Ruff v. G., S. & F. Railway Co., 67 Fla. 224, text 232, 64 So. 782, text 785.'

Nor did the majority opinion in Pillet v. Ershick hold that section 4615, C.G.L., had in fact changed the common-law rule 'that a motion for such a judgment cannot be interposed by a defendant.' It was merely stated that such rule 'has not been abolished by statute nor relaxed by decisions of this court except in so far as section 4615, Comp.Gen.Laws 1927, as construed by this court, may be considered an abandonment or relaxation of the rule.'

The section referred to, 4615, C.G.L., merely provides that when the appellate court reverses an order granting a new trial (thus holding that the motion for new trial as made in the lower court should not have been granted, and that the original verdict should not have been set aside on such a motion), the appellate court shall direct final judgment to be entered in the court below for the party who had obtained the verdict, 'unless a motion in arrest of judgment, or for judgment non obstante veredicto, shall be made and prevail.' But not a word is said which even intimates that the Legislature intended to change the well-established grounds upon which the two varieties of motions referred to by the statute must be based, and only upon which grounds such motions could rightfully and lawfully 'be made and prevail.' By this last clause of the statute, it was held in Ruff v. Georgia, S. & F. Ry. C...

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29 practice notes
  • Keene v. Chicago Bridge and Iron Co., No. 89-2542
    • United States
    • Court of Appeal of Florida (US)
    • February 18, 1992
    ...right to trial by jury guaranteed in Article I, section 22, of the Florida Constitution (1968). Dudley v. Harrison, McCready & Co., 127 Fla. 687, 173 So. 820, 825-26 (1937); Hernandez v. Motrico, Inc., 370 So.2d Whether a duty exists between the defendant and the plaintiff is a question......
  • Thoman v. Ashley, No. 4548
    • United States
    • Court of Appeal of Florida (US)
    • December 18, 1964
    ...implication unless clearly necessary to give full force to the statute. Dudley v. Harrison, McCready & Co., 1937, 127 Fla.App., 687, 173 So. 820, reh. den. 128 Fla.App., 338, 174 So. 729. The same construction should apply with respect to rules of court when a pre-existing right is at s......
  • Hilkmeyer v. Latin Am. Air Cargo Expediters, Inc.
    • United States
    • United States State Supreme Court of Florida
    • April 24, 1957
    ...the first adoption of our provision. See, Hughes v. Hannah, 1897, 39 Fla. 365, 22 So. 613; Dudley v. Harrison, McCready & Co., 1937, 127 Fla. 687, 173 So....
  • Weis-patterson Lumber Co. v. King
    • United States
    • United States State Supreme Court of Florida
    • November 27, 1937
    ...in plaintiff's favor. Atlantic Coast Line R. R. Co. v. Canady, a minor, supra. [177 So. 321] In Dudley v. Harrison, McCready & Co., 127 Fla. 687, 173 So. 820, 823, we said: 'At common law the scope of this motion for judgment non obstante veredicto was a narrow one. Nor do we really nee......
  • Request a trial to view additional results
29 cases
  • Keene v. Chicago Bridge and Iron Co., No. 89-2542
    • United States
    • Court of Appeal of Florida (US)
    • February 18, 1992
    ...right to trial by jury guaranteed in Article I, section 22, of the Florida Constitution (1968). Dudley v. Harrison, McCready & Co., 127 Fla. 687, 173 So. 820, 825-26 (1937); Hernandez v. Motrico, Inc., 370 So.2d Whether a duty exists between the defendant and the plaintiff is a question......
  • Thoman v. Ashley, No. 4548
    • United States
    • Court of Appeal of Florida (US)
    • December 18, 1964
    ...implication unless clearly necessary to give full force to the statute. Dudley v. Harrison, McCready & Co., 1937, 127 Fla.App., 687, 173 So. 820, reh. den. 128 Fla.App., 338, 174 So. 729. The same construction should apply with respect to rules of court when a pre-existing right is at s......
  • Hilkmeyer v. Latin Am. Air Cargo Expediters, Inc.
    • United States
    • United States State Supreme Court of Florida
    • April 24, 1957
    ...the first adoption of our provision. See, Hughes v. Hannah, 1897, 39 Fla. 365, 22 So. 613; Dudley v. Harrison, McCready & Co., 1937, 127 Fla. 687, 173 So....
  • Weis-patterson Lumber Co. v. King
    • United States
    • United States State Supreme Court of Florida
    • November 27, 1937
    ...in plaintiff's favor. Atlantic Coast Line R. R. Co. v. Canady, a minor, supra. [177 So. 321] In Dudley v. Harrison, McCready & Co., 127 Fla. 687, 173 So. 820, 823, we said: 'At common law the scope of this motion for judgment non obstante veredicto was a narrow one. Nor do we really nee......
  • Request a trial to view additional results

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