Fee v. Florida Sugar Mfg. Co.

• Decision Date: 04 January 1896
• Citation: 18 So. 853,36 Fla. 612
• Parties: FEE et al. v. FLORIDA SUGAR-MANUF'G CO.
• Court: Florida Supreme Court

18 So. 853

36 Fla. 612

FEE et al. v. FLORIDA SUGAR-MANUF'G CO.

Florida Supreme Court

January 4, 1896

Appeal from circuit court, Osceola county; John D. Broome, Judge.

Action by Walter Nesbitt and Frank H. Fee against the Florida Sugar-Manufacturing Company, a corporation. Judgment for defendant, and plaintiffs appeal. Reversed.

Syllabus by the Court

SYLLABUS

1. The rule announced in this court on the subject of demurring to evidence is that the demurrer admits the truth thereof, and also such conclusions as the jury may fairly and justifiably draw from the evidence. Forced or violent inferences are not admitted, but the testimony is to be taken most strongly against the demurrant; and such conclusions as a jury might justifiably draw, the court ought to draw. The rule stated should be qualified by the further statement that it is no part of the object of such a demurrer to bring before the court an investigation of the facts in dispute, or the reconciliation of conflicting testimony, or presumptions arising therefrom.

2. Upon a demurrer to evidence, it is the duty of the court to declare the law upon the facts shown in evidence; and, in the nature of the case, the question of law on the fact cannot arise until the fact is ascertained.

3. It is the province of the jury to ascertain the facts, under the direction of the judge; and if a party wishes to withdraw from the jury the application of the law to the fact, and all consideration of what the law is upon the fact, he may do so by demurring to the evidence, in which case he must, if the testimony is oral, loose, and indeterminate, or circumstantial, state it upon the record as certain and determinate, and admit upon the record every fact and every conclusion which the evidence of his adversary fairly conduces to prove; and unless this is done the demurrant has no right to call upon his antagonist to join in the demurrer.

4. In case there is a demurrer to evidence that is conflicting loose, and indeterminate, and there is no statement upon the record making it certain and determinate, it will be sufficient reason for the court to refuse to give judgment upon the demurrer, though there be a joinder therein; and, if a judgment should be rendered in such a case, it is liable to be reversed for error.

COUNSEL

W. R. Anno, for appellants.

Louis C. Massey, for appellee.

OPINION

MABRY C.J.

Appellants were plaintiffs in the circuit court, and appellee was defendant. The suit was instituted in 1891 for drilling an artesian well, 402 feet, at $2.50 per foot, by plaintiffs for defendant, amounting to the sum of $1,005. The account filed with the declaration is credited with $53, leaving a balance of $952. The declaration also contains counts for $952 for work and material provided by plaintiffs for defendant, for money paid by plaintiffs for defendant, and for money found to be due plaintiffs from defendant upon an account stated between them. The plea was the general issue.

After plaintiffs had submitted their evidence to the jury, the defendant demurred to the evidence, and the plaintiffs joined therein. The record recites that after the defendant demurred to the evidence, and admitted every fact and conclusion which the evidence offered by plaintiffs tended to prove, the court discharged the jury from further consideration of the issue joined, and they retired, and returned into the court with the following verdict: 'We, the jury, find for plaintiffs, and assess their damages at $990.08. This verdict is conditioned upon the ruling of the court as to the sufficiency of the evidence in favor of plaintiffs.' Thereupon the court sustained the demurrer and rendered judgment for defendant, and plaintiffs excepted.

At the time the demurrer was disposed of, there was no statement or admission entered of record of the facts established by the evidence, or of the facts which it tended to prove; but we have in the record an ordinary bill of exceptions, made up in pursuance of a special order after the adjournment of the court, of the testimony of the witnesses offered by plaintiffs.

The determination of this case requires a further or more extended statement of the practice of demurring to evidence than is found in our former decisions. A demurrer to evidence was a proceeding well known to the common law, though it seems that it was not often resorted to, and was not familiar in practice. In the last case on this subject (Wilkinson v. Railroad Co., 35 Fla. 82, 17 So. 71), after citing former decisions, it was held that a demurrer to the evidence admits the truth thereof, and also such conclusions as the jury may fairly and justifiably draw therefrom. Forced or violent inferences from the evidence are not thereby admitted, but the testimony is to be taken most strongly against the demurrant, and such conclusions as a jury might justifiably draw therefrom, the court ought to draw. The case of Gibson v. Hunter, 2 H. Bl. 187, decided in the house of lords in 1793, was designed to settle the practice of demurring to evidence. This case should be, and has generally been, recognized as declaratory of the common-law rule on the subject. In this case the lord chief justice answering for all the judges, said: 'The questions referred by your lordships to the judges arise upon a proceeding which is called a 'demurrer to evidence,' and which, though not familiar in practice, is a proceeding well known to the law. It is a proceeding by which the judges, whose province it is to answer to all questions of law, are called upon to declare what the law is upon the facts shown in evidence, analogous to the demurrer upon the facts alleged in pleading. My lords, in the nature of the thing, the question of law to arise out of the fact cannot arise till the fact is ascertained. It is the province of a jury to ascertain the facts, under the direction and assistance of the judge. The process is simple and distinct though in our books there is a good deal of confusion with respect to a demurrer upon evidence and a bill of exceptions, the distinct lines of which have not always been kept so much apart as they ought to have been. * * * But if the party wishes to withdraw from the jury the application of the law to the fact, and all consideration of what the law is upon the fact, he then demurs in law...