Great American Ins. Co. of N.Y. v. Suarez

• Citation: 107 Fla. 705,146 So. 644
• Parties: GREAT AMERICAN INS. CO. OF NEW YORK v. SUAZEZ.
• Decision Date: 17 November 1932
• Court: United States State Supreme Court of Florida

146 So. 644

107 Fla. 705

GREAT AMERICAN INS. CO. OF NEW YORK v. SUAZEZ.

Florida Supreme Court, Division B.

November 17, 1932

Rehearing Granted Jan. 9, 1933.

On Rehearing Feb. 2, 1933.

Second Petition for Rehearing Denied March 7, 1933.

Error to Circuit Court, Hillsborough County; L. L. Parks, Judge.

Action by Jose Suarez, Jr., against the Great American Insurance Company of New York. Judgment for plaintiff, and defendant beings error.

Affirmed on condition of a remittitur, otherwise reversed for a new trial.

BUFORD C.J., dissenting in part.

On Motion for Rehearing.

On Petition for Second Rehearing.

COUNSEL

Dickenson & Lake, of Tampa, for plaintiff in error.

Caraballo Graham & Cosio, of Tampa, for defendant in error.

OPINION

WHITFIELD P.J.

This action is upon a fire insurance policy for $5,000 on 'tires, tubes, and appurtenances' etc. Two previous judgments for the plaintiff were reversed. Great Am. Ins. Co. v. Suarez, 92 Fla. 24, 109 So. 299; Id., 96 Fla. 865, 119 So. 388, 120 So. 320. The verdict and judgment here considered were rendered July 16, 1930, awarding the plaintiff $5,390 which includes $3,000 damages with interest from September 13, 1923, and $750 attorney's fees. A writ of error to the judgment was taken by the defendant, August 21, 1930.

The bill of exceptions duly authenticated by the trial judge and made a part of the transcript of the record brought here on this writ of error, contains a statement that on July 19, 1930, the defendant was by order of court made at the same term in which the verdict was rendered, July 16, 1930, allowed until July 22, 1930, to file a motion for new trial and that such motion was 'filed, docketed and recorded' July 22, 1930. This motion for new trial was by order denied by the trial judge, August 16, 1930, during the term in which the verdict and judgment were rendered. The defendant was by the same order allowed ninety days from that date to present a bill of exceptions. A bill of exceptions, which included the motion for new trial, the order denying such motion, and an exception taken thereto, was duly authenticated by the trial judge on October 23, 1930. The transcript also contains, outside of the bill of exceptions and without any authentication whatever by the trial judge, a motion filed October 23, 1930, to strike the motion for new trial with objections thereto, and an order granting the motion to strike, with an exception thereto. As the motion for new trial was filed within the time allowed under section 4498(2811), C. G. L., and as the trial judge afterwards considered and denied the motion, it will be assumed on this record that the motion for new trial was duly presented to the court, unless the contrary is duly shown by a properly authenticated transcript.

Even if, after the writ of error was issued to the judgment in the cause and filed in the trial court, the judge of that court had authority to strike the motion for new trial that had been considered and denied by him, and the motion, the order thereon, and an exception thereto had been incorporated in a bill of exceptions that had been duly authenticated by such judge, the transcript brought here on the writ of error does not present the motion to strike the motion for new trial and the order made thereon in such authenticated form that the motion to strike and the order thereon with the exception thereto may be considered by this court. Such motion to strike the motion for new trial and the order granting the motion to strike and the exception to such order are not a part of the record proper, but are matters in pais which are required by law to be, but are not, authenticated by the trial court by appropriate bill of exceptions or by other method, if any, that is permissible under the law and the rules of the court. Section 4612, Compiled General Laws, does not cure the defect in the transcript, since the motion to strike and the order thereon and the exception to the order are not in any way properly authenticated. The certificate of the clerk to the transcript cannot give authenticity to matters in pais which had not been duly authenticated by the trial court. The mere copy of the order signed by the judge granting the motion to strike the motion for new trial is not due authentication, since the motion for new trial and the order made thereon and the exception thereto being matters in pais, the motion to strike and the order thereon and the exception thereto are also matters in pais and should in some proper manner be authenticated by the trial court and not merely by the certificate of the clerk attached to the transcript on writ of error. The motion for new trial, the order denying the motion, and the exception taken to the order as contained in the certified transcript of the duly authenticated bill of exceptions may be considered by this court upon appropriate assignments of error.

A provision of the policy is that 'this company shall not be liable beyond the actual value of the property at the time any loss or damage occurs.' The court charged the jury that:

'If you find the plaintiff is entitled to recover in this case he is entitled to recover for whatever the amount you find was the value of the goods in there at the time of the fire, that would be his loss under the terms of this policy.'

The evidence considered as an entirety clearly does not show that the actual value of the property at the time of the loss or damage was even approximately the principal amount of damages awarded by the verdict and the judgment; and as a consequence the verdict is contrary to the evidence and the law. Further and detailed discussion of matters argued is unnecessary.

Reversed.

ELLIS, TERRELL, BROWN, and DAVIS, JJ., concur.

BUFORD, C.J., dissents.

On Motion for Rehearing.

PER CURIAM.

Because this case has been several times reversed by this court and has resulted favorably to defendant in error on several trials had afterwards (See Great American Ins. Co. of N.Y. v. Suarez, 92 Fla. 24, 109 So. 299; Great American Ins. Co. of N.Y. v. Suarez, 96 Fla. 865, 119 So. 388, 120 So. 320), we have decided to grant a rehearing on the merits before the court en banc, so that we may be fully advised among other things, as to whether there is any evidence in the record from which we would allow a remittitur in the amount of recovery, in lieu of a reversal for new trial, if any right to recovery be sustained on rehearing as justified by the evidence.

But before the rehearing is had, we deem it impreative to discuss and dispose of those questions which have been suggested by the petition for rehearing relating to the transcript of the record before us and our previous decision thereon.

The motion for new trial was, within the time allowed, filed July 22, 1930, and it was entertained by the judge who denied the motion August 16, 1930. The motion and the order denying the motion for new trial and the exception thereto appear in the record proper and also in the bill of exceptions.

A writ of error was issued August 21, 1930, by the clerk of the circuit court acting as clerk of this court for that purpose. Upon the issuance of the writ of error the cause was transferred to the jurisdiction of this court; and even without a supersedeas the circuit court had no authority to strike the motion for new trial on October 23 1930, since the motion for a new trial and the order thereon were a part of the cause that had been transferred to this court upon the issuance of the writ of error by the clerk of the circuit court, August 21, 1930. Besides this, the motion for new trial and the order thereon and the exception taken to the order were incorporated as a part of the bill of exceptions which was authenticated by the judge, October 23, 1930. The motion for new trial, not the order denying the motion, was stricken by the circuit judge, October 23, 1930. Even if, instead of striking the motion for new trial, which motion, with the order denying it and the exception taken to such order, were then in the jurisdiction of this court, the circuit judge had required the motion to strike the motion for new trial, the objections thereto and the order thereon, with the exception thereto, to be incorporated in a duly authenticated bill of exceptions, and included in the transcript sent here under in writ of error, the effect, if any, which such matters so authenticated by the judge would have upon the motion for new trial that had been entertained and denied by the circuit judge, August 16, 1930, would be for this court to consider if duly presented.

But the matters relative to striking the motion for new trial are adversary proceedings in pais, had two months after the motion for new trial was denied; and such matters in pais are not so authenticated that they may be considered by this court. It is now too late to authenticate a bill of exceptions covering the motion to strike, the objections thereto, and the order thereon with the exceptions thereto, because when, upon adversary proceedings on October 23d, the order was made striking the motion for new trial, no bill of exceptions was then authenticated covering such matter under sections 4609(2904), 4616(2906), Compiled General Laws; and no further time was allowed by special order in which to do so under rule 97.

The opinion and judgment of this court are correct on the record as it then existed in the circuit court. Brown v State, 29 Fla. 494, 11 So. 181. A motion to amend the bill of exceptions to include therein matters not properly authenticated to become a part of the record at the time the judgment here was rendered will not avail the movant, because when the order striking the motion for new trial was made, the proceedings,...