Fain v. Cartwright

• Decision Date: 17 June 1938
• Citation: 132 Fla. 855,182 So. 302
• Parties: FAIN v. CARTWRIGHT.
• Court: Florida Supreme Court

182 So. 302

132 Fla. 855

FAIN v. CARTWRIGHT.

Florida Supreme Court

June 17, 1938

Error to Circuit Court, Volusia County; H. B. Frederick, Judge.

Action by C. C. Cartwright against C. W. Fain for damages sustained when defendant's automobile was driven into plaintiff's truck. Judgment for the plaintiff, and the defendant brings error.

Affirmed.

On Motion for Directed Verdict.

COUNSEL

M. G. Rowe, of Daytona Beach, for plaintiff in error.

Ray Selden, of Daytona Beach, for defendant in error.

OPINION

BUFORD Justice.

C. C Cartwright, plaintiff in the court below, filed his declaration, containing three counts, in the Circuit Court of Volusia County. The first count of the declaration alleged in substance that on the 2nd day of February, 1934, plaintiff was riding in, and operating, his automobile truck with due caution upon a certain highway in Volusia County known as the DeLand-Daytona road and at a point about one-fourth of a mile west of the canal going across said highway and road, when defendant acting by and through his servant, agent and employee, to wit: one Lansen, carelessly and negligently operated and propelled a certain automobile, to wit; a Dodge Sedan, owned by the defendant, which this said agent, servant and employee was driving, with great force and violence against plaintiff's automobile and as a proximate result of defendant's carelessness and negligence the plaintiff's automobile was greatly damaged and rendered of no value whatsoever and plaintiff's automobile was reasonably worth $600 prior to the accident and that plaintiff was deprived thereof, and further as a proximate result of defendant's carelessness and negligence plaintiff suffered numerous body injuries, bruises, cuts and lacerations and was injured and suffered intense pain in the mind and body and has been laid up and prevented from performing his usual occupation at which he was earning thirty-five dollars per week, for a period of two weeks.

The second count was not materially different from the first except that it alleged that the driver of defendant's automobile, 'was in possession of a certain automobile owned by the defendant, and had it in his possession with the knowledge and consent of said defendant'. Under this Count the plaintiff did not allege total loss of the truck but alleged that 'plaintiff was put to great expense in repairing his said automobile'. Damages were also claimed for pain and suffering, and loss of two weeks' earnings at thirty-five dollars per week.

The third count is substantially the same as the second except it alleges that the driver of defendant's car was 'in possession of a certain automobile which had heretofore been entrusted to him by the owner of the same' (defendant). One thousand dollars damage was claimed in each Count of the declaration. Bill of Particulars filed with the Declaration was amended upon motion of defendant.

Defendant filed demurrer to the Declaration, and sixteen pleas, including a plea of general issue and contributory negligence. Plaintiff filed a demurrer and motion to strike all pleas except the plea of general issue. The trial judge struck pleas 3, 4, 5, 7, 8, 12, 14, 16 and 17 and overruled the demurrer. Plaintiff filed a joinder of issue and replication to the remaining pleas, and the case was set for trial. Defendant's motion for a continuance on the ground that a material witness, Emma Walker, was absent from the County, was denied by the trial judge. Defendant thereupon made the following motion 'ore tenus':

'The defendant, by his counsel, moves the court to require the plaintiff to elect whether he is going to stand on his first count of the declaration or the other two counts, because of the fact that he alleges in the first count the total destruction of the truck, while in the other two counts of the declaration he alleges damages, damages to the truck and expense of repairing same to put it back in service.'

The trial judge overruled the motion and the jury was called and sworn.

At the end of the testimony introduced by the plaintiff, defendant moved the court for a directed verdict on the first count of the declaration, primarily on the ground that plaintiff had offered no evidence bearing on the total destruction of the automobile. The motion was denied with the following comment, 'The Court will exclude from consideration by the jury under the first count of the declaration, any damages arising out of the total loss of the truck or the partial loss thereof.' Thereupon defendant moved for a directed verdict as to all counts of the declaration on the ground that 'plaintiff had not maintained the burden cast upon him of establishing the cause of action set forth in his declaration, or any count thereof, by a preponderance of the evidence before the jury'. Motion was denied and the defendant introduced testimony in his behalf. At the termination of the introduction of all the evidence, the jury was charged and after deliberation returned a verdict for the plaintiff and assessed his damages in the amount of $300. Judgment was entered on the verdict, and motion for new trial was denied.

The first eight assignments of error are predicated on the trial judge's ruling on the motion to strike certain pleas of the defendant. Plaintiff in error abandoned all except two of these assignments and in his brief only argues that the Court erred in striking pleas 4 and 5, which are:

'And, for a fourth plea, the defendant denies that the plaintiff suffered physical injury as the proximate result of negligence in the operation of his automobile upon said highway.

'And, for a fifth plea, the defendant denies that the plaintiff, at the time of said accident, was operating his said truck with due care and caution.'

The first and second pleas of the defendant were pleas of general issue (not guilty) and pleas of contributory negligence, respectively. It appears that the pronoun, 'his', in the fourth plea is indefinite as it may equally apply to the defendant or the plaintiff. Under the established rule of this Court, that pleadings are construed most strongly against the pleader, this plea would not be a good defense against the case made out by the declaration. Furthermore, it appears that these defenses could either be raised under the plea of general issue, or under the plea of contributory negligence. As to the scope of the plea of 'not guilty' see Crandall's Florida Common Law Practise, Sec. 116; Common Law Rules, Rules 32 and 33 (substantially same as old common law rules 71 and 72); 11 Ency. Digest of Fla. Reports, title Pleading, Sec. 59; 13 Ency. Digest of Fla. Reports, title Torts, 111 B.; Carson's Florida Common Law Pleading P. 1141; Arnow's Florida Practise Rules, annotated, pages 33 to 37; and cases cited.

As the defenses embodied in these two pleas could have been raised under the other pleas it was proper to strike them. See Florida Common Law Rule 41 (old common law rule 59). In the case of Tripp v. Wade, 82 Fla. 325, 89 So. 870, 871, it was held:

'That a special plea tendering an issue covered by a plea of the general issue in a case in which such latter plea is applicable may be stricken is well settled in this jurisdiction. It may be done upon motion of plaintiff or by the court of its own motion'. (Numerous cases cited.)

This Court further held in the above cited case:

'But even though there may be technical error in an order striking a pleading, it will not be held to be sufficient to require a reversal of the judgment if it affirmatively appears that the party whose pleading was stricken was not harmed thereby and was not prevented from submitting his case to the jury under such a state of pleadings as to give him all the benefits he would have had if such pleading had not been stricken, upon the ground that the error was not harmful.' (Cases cited.)

The lower court did not commit error in the striking of these two pleas and, had it done so, it does not appear that the error would have been harmful, as the court apparently struck these two pleas because they were covered by the other pleas (as is acknowledged by plaintiff in error in his reply brief, Page 3) and under this view the defendant could have introduced evidence and proved these defenses. Seaboard A. L. Ry Co. v. Watson, 94 Fla. 571, 113 So. 716; ...