Florida Power Co. v. Cason

• Decision Date: 24 April 1920
• Citation: Florida Power Co. v. Cason, 79 Fla. 619, 84 So. 921 (Fla. 1920)
• Parties: FLORIDA POWER CO. v. CASON.
• Court: Florida Supreme Court

84 So. 921

79 Fla. 619

FLORIDA POWER CO. v. CASON.

Florida Supreme Court

April 24, 1920

Error to Circuit Court, Citrus County; W. S. Bullock, Judge.

Action by H. I. Cason against the Florida Power Company. Verdict and judgment for plaintiff on a second trial, and defendant brings error. On petition for rehearing, after a judgment of affirmance. Judgment reversed.

See also, 74 Fla. 1, 76 So. 535, L. R. A. 1918A, 1034.

Syllabus by the Court

SYLLABUS

Upon a motion for new trial the following order was made: 'This cause has been to the Supreme Court of this state, and on the testimony there presented to the court they held that, as the declaration stated a cause of action, the matter should have been submitted to a jury. I am of the same opinion now, as at that time, that the evidence did not show any cause of action, and for that reason directed a verdict. The evidence is now practically the same, and as the court said 'there is at least some substantial evidence tending to show injury to the plaintiff's land, and to the growing crops thereon, by the rising of the surface waters much nearer the surface, which is caused by the dam, the court erred in directing a verdict.' I have submitted to the jury the evidence, and they have made a finding, and I hold it was within their province to determine the value of such testimony. The motion for a new trial is denied, to which ruling the defendant excepts.' Held that, if the judge was of the opinion that the evidence did not show any cause of action and was insufficient to sustain the verdict, he should have granted a new trial to defendant.

If the evidence at the last trial was in legal effect substantially the same as at the first trial, still this court had not held it sufficient to sustain a verdict for the plaintiff, and the defendant was entitled to a ruling thereon by the trial judge, and, if the trial judge was of the opinion that the verdict did not accord with the substantial justice of the case and the manifest weight of the evidence, it was his duty to grant a new trial duly asked for.

Although a motion for a directed verdict for one party may be denied yet in the same case, if the trial court is of the opinion that the verdict does not accord with the manifest weight of the evidence and the substantial justice of the case, a new trial should be granted, if duly made.

The considerations and legal principles that guide the judicial discretion in directing a verdict and in graning a new trial on the evidence are not the same.

Questions of the sufficiency of the evidence to sustain the verdict or finding in an action at law can be reviewed only through the medium of a motion for new trial duly made and presented, and the statute contemplates that a motion for a new trial shall be adjudicated by the trial judge, and an exception duly taken to an order overruling or denying the motion, as a prerequisite to an appellate review of the motion for a new trial.

Where a motion for new trial is duly made, the party making it is entitled to the benefit of the judicial opinion of the trial judge thereon.

The doctrine of 'reasonable user' having been adopted in this state, the question of unreasonable use and resulting damage should be submitted to the jury upon appropriate instruction, when there is any substantial evidence to sustain the issue.

COUNSEL Anderson & Anderson, of Ocala, for plaintiff in error.

John U Bird, of Clearwater, and A. C. Brooks, of Tampa, for defendant in error.

OPINION

WEST J.

Upon a second trial of this case the verdict was for the plaintiff, and defendant took writ of error. The judgment was affirmed, but upon application of defendant a rehearing was granted.

The cause of action alleged is that by the defendant erecting a dam across the Withlacoochee river, the natural subterranean drainage of plainiff's described land 'was stopped, obstructed, and hindered, and the waters of said river so dammed up were caused to percolate into and through the said land of the plaintiff, all of which caused said land to be and remain continually from the month of May, 1912, until the institution of this suit, saturated with water and so wet as to render same totally unfit for cultivation or any useful purpose, and that same has been rendered permanently a total loss to the plaintiff,' and 'that by reason of the erection of said dam, and the damming up of the waters of said river as aforesaid, said land and the improvements and growing crops thereon have been damaged.'

Damages were adjudged to the plaintiff in the sum of $1,692.00.

In denying a motion for a new trial the circuit judge said, as shown by the bill of exceptions:

'This cause has been to the Supreme Court of this state, and on the testimony there presented to the court they held that, as the declaration stated a cause of action, the matter should have been submitted to a jury. I am of the same opinion now, as at that time, that the evidence did not show any cause of action, and for that reason directed a verdict. The evidence is now practically the same, and as the court said 'there is at least some substantial evidence tending to show injury to the plaintiff's land, and to the growing crops thereon, by the rising of the surface waters much nearer the surface, which is caused by the dam, the court erred in directing a verdict,' I have submitted to the jury the evidence, and they have made a finding, and I hold it was within their province to determine the value of such testimony. The motion for a new trial is denied, to which ruling the defendant excepts.'

For former opinion herein, see Cason v. Florida Power Co., 74 Fla. 1, 76 So. 535, L. R. A. 1918A, 1034.

The judge thus in effect stated that in his opinion the evidence did not show any cause of action, but that it was within the province of the jury to determine the value of the testimony, and he would not disturb the verdict. If the judge was of the opinion that the evidence was insufficient to sustain the verdict, he should have granted a new trial. Seaboard Air Line Ry. v. Anderson, 73 Fla. 1, 73 So. 837; Tampa Waterworks Co. v. Mugge, 60 Fla. 263, 53 So. 943; Schultz v. Pacific Ins. Co., 14 Fla. 73.

In the former opinion herein it is stated that, as there was evidence tending to show injury to the plaintiff's property, the case should have been submitted to the jury, and that the verdict rendered may be reviewed by the trial court--citing Carney v. Stringfellow, 73 Fla. 700, 74 South, 866.

Even if the evidence at the last trial was in legal effect substantially the same as at the first trial, still this court had not held it sufficient to sustain a verdict for the plaintiff, and the defendant was entitled to a ruling thereon by the trial judge; and if the trial judge should be of the opinion that the verdict does not accord with the justice of the case and the manifest weight of the evidence it is his duty to grant a new trial duly asked for. Seaboard Air Line Ry. v. Anderson, supra; Schultz v. Pacific Ins. Co., 14 Fla. 73, text 94.

Although a motion for a directed verdict for one party may be denied, yet in the same case, if the trial court is of the opinion that the verdict does not accord with the manifest weight of the evidence and the substantial justice of the cause, a new trial should be granted, if duly made. Carney v. Stringfellow, supra.

The considerations and legal principles that guide the judicial discretion in directing a verdict and in granting a new trial on the evidence are not the same. Gravette v. Turner, 81 So. 476.

Questions as to the sufficiency of the evidence to sustain the verdict or finding in an action at law can be reviewed only through the medium of a motion for a new trial duly made and presented, and the statute contemplates that a motion for a new trial shall be adjudicated by the trial judge, and an exception duly taken to an order overruling or denying the motion, as a prerequisite to an appellate review of the motion for new trial. Section 1693, Gen. Stats. 1906, Compiled Laws 1914; Thomas Bros. Co. v. Price &amp Watson, 56 Fla. 854, 48 So. 262; Jacksonville Electric Co. v. Adams, 50 Fla. 429, 39 So. 183, 7 Ann. Cas. 241; Manatee County State Bank v. Wade,...