Groover v. Hammond

• Decision Date: 25 May 1917
• Citation: 73 Fla. 1155,75 So. 857
• Parties: GROOVER v. HAMMOND et al.
• Court: Florida Supreme Court

75 So. 857

73 Fla. 1155

GROOVER v. HAMMOND et al.

Florida Supreme Court

May 25, 1917

Error to Circuit Court, Duval County; George Couper Gibbs, Judge.

Action by Barbara Hammond and others against E. A. Groover. Judgment for plaintiffs, and defendant brings error. Affirmed.

Syllabus by the Court

SYLLABUS

Where one of the assignments of error is based upon the overruling of the demurrer to the declaration, the better practice is for the plaintiff in error to discuss such assignment first in his brief for the reason that, where there is no sufficient declaration in a case, and a demurrer should have been sustained therto, the other questions in the record are not open for the consideration of the appellate court.

While an assignment of error based upon the overruling of the demurrer interposed to the declaration is not required to designate or specify the particular grounds of the demurrer relied on, the plaintiff in error will be confined to the grounds stated in the demurrer and argued in the appellate court, the grounds thereof not argued being treated as abandoned, the only exception thereto being where there is an omission in the declaration of allegations of substantive facts which are essential to a right of action, so that the declaration wholly fails to state a cause of action.

Section 1448 of General Statutes of 1906 does not require that each count of a declaration should set forth the amount of damages claimed by the plaintiff, though there is no objection to so doing. It is sufficient compliance with the statute if the declaration concludes with a statement as to the amount of damages claimed by the plaintiff.

In construing a declaration, if there are two intendments, it shall be taken most strongly against the plaintiff; but the intendments must be reasonable, not strained or forced.

Conceding that, where the declaration, in an action at law seeking to recover damages alleged to have been occasioned by the negligence of the defendant, where such damages are not apportionable under the statute, shows upon its face that the plaintiff was guilty of contributory negligence, advantage thereof may be taken by demurrer, if the declaration fails to so show, it is not demurrable upon that ground.

Where contributory negligence is a defense to an action in tort, it should be pleaded and proven by the defendant, unless it appears from the allegations or proofs of the plaintiff.

The credibility and probative force of conflicting testimony are for the determination of the jury.

Where there is substantial legal evidence to support the verdict and there is nothing to indicate that the jury misapplied the law, and it does not appear by an overwhelming preponderance of the weight of the evidence or otherwise that the jury were not governed by the evidence in making their finding, the appellate court will not reverse the judgment on the ground that the verdict is not supported by the evidence.

A motion in arrest of judgment reaches only such errors as are apparent on the record proper.

A judgment will not be reversed for harmless errors in rulings on the admissibility of testimony.

COUNSEL Cockrell & Cockrell, of Jacksonville, for plaintiff in error.

Austin Miller, of Jacksonville for defendants in error.

OPINION

SHACKLEFORD J.

Barbara Hammond and F. B. Hammond, her husband, and H. L. Hammond instituted an action at law against E. A. Groover for the recovery of damages to an automobile owned by the Hammonds alleged to have been occasined by the negligence of Groover in operating his automobile, whereby he ran into and against the plaintiffs' automobile, greatly damaging and totally demolishing the same. The declaration originally contained five counts, the last three of which went out on demurrer, so that only the first two were left standing, which are as follows:

'1. Barbara Hammond and F. B. Hammond, her husband, and H. L. Hammond, by Miller & Fowler, their attorneys, sue E. A. Groover for that on the 13th day of September, A. D. 1913, he owned, maintained, and operated upon the public or county roads of Duval county, Fla., a certain automobile known and designated as a MacFarland 'Six'; that on the day aforesaid, at about 11 p. m. of the clock, at a certain spot designated as the intersection of St. Johns and Edgewood avenues, in the said county and state, said defendant so negligently and carelessly drove and ran the said automobile that it ran into and against the automobile of the plaintiffs, whereby it was greatly damaged and totally wrecked.

'2. And the plaintiffs further sue the defendant for that, at the time and place aforesaid in count 1 of this declaration, plaintiff H. L. Hammond was driving plaintiffs' automobile along Edgewood avenue towards the intersection of St. Johns avenue; that said H. L. Hammond saw and perceived this defendant driving his automobile towards him and said intersection at a great rate of speed, to wit, at the rate of from 25 to 35 miles per hour, on said St. Johns avenue; that said H. L. Hammond stopped the plaintiffs' automobile, in order that the defendant might pass, said plaintiffs' automobile being wholly upon Edgewood avenue, excepting about two feet of said automobile which extended out and onto St. Johns avenue; but defendant so negligently and carelessly ran his said automobile that he ran into and against the plaintiffs' automobile, greatly damaging and totally demolishing same.'

To this declaration the defendant filed the following pleas:

'Comes now the defendant by his attorneys, Cockrell & Cockrell, and for his plea to the declaration and each count thereof severally says that he is not guilty.

'2. And for a second plea to said declaration and each count thereof severally, defendant says that plaintiffs were guilty of negligence which caused the injury complained of in this: At the time and place of the accident defendant was driving his automobile along St. Johns avenue, in the county of Duval and state of Florida. Said St. Johns avenue was then and there one of the principal roads of Duval county, Fla., along which many vehicles constantly pass. Defendant was then and there driving his automobile in a prudent and careful manner at a reasonable rate of speed. Just before defendant reached the intersection of St. Johns avenue and Edgewood avenue, plaintiffs drove their automobile on to St. Johns avenue in front of defendant. Plaintiffs then and there drove their automobile from Edgewood avenue south of St. Johns avenue. That part of Edgewood avenue which is south of St. Johns avenue was then and there little used. Defendant, on seeing plaintiffs' automobile drive into St. Johns avenue in front of defendant, turned his car so as to pass in the rear of plaintiffs' automobile. Plaintiffs then and there suddenly stopped plaintiffs' sutomobile, and then and there backed plaintiffs' automobile in such way as that, though defendant made every effort to avoid a collision, defendant was unable to do so. Defendant further alleges that the stopping and backing by plaintiffs of plaintiffs' automobile as aforesaid was done negligently and carelessly and was the proximate cause of the collision and accident.'

The plaintiffs joined issue upon these pleas, and the cause was submitted to a jury for trial and determination, which resulted in a verdict being returned in favor of the plaintiffs for the sum of $800, upon which judgment was duly rendered and entered, which judgment the defendant has brought here for review, assigning several errors.

We shall take up first for consideration the first, second, and third assignments, which are based upon the overruling of the demurrer to the first and second counts of the declaration, which we have copied above. It is true that these assignments are not the first ones argued before us, though, as we held in Atlantic Coast Line R. Co. v. Holliday, 73 Fla. ----, 74 So. 479:

'Where one of the assignments of error is based upon the overruling of the demurrer to the declaration, the better practice is for the plaintiff in error to discuss such assignment first in his brief for the reason that, where there is no sufficient declaration in a case, and a demurrer should have been sustained thereto, the other questions in the record are not open for the consideration of the appellate court.'

The demurrer was interposed to the entire declaration and was sustained as to the last three counts, but overruled as to the first two. As we also held in Atlantic Coast Line R. Co. v. Holliday, supra:

'While an assignment of error based upon the overruling of the demurrer interposed to the declaration is not required to designate or specify the particular grounds of the demurrer relied on, the plaintiff in error will be confined to the grounds stated in the demurrer and argued in the appellate court, the grounds thereof not argued being treated as abandoned, the only exception thereto being where there is an omission in the declaration of allegations of substantive facts which are essential to a right of action, so that the declaration wholly fails to state a cause of action.'

It is contended that these two counts are fatally defective for the reason that neither contains a claim for damages in any sum. In support of this contention is cited Treusch v. Kamke, 63 Md. 274, wherein it...