Guaranty Life Ins. Co. of Fla. v. Hall Bros. Press, Inc.

• Decision Date: 19 May 1939
• Citation: 189 So. 243,138 Fla. 176
• Parties: GUARANTY LIFE INS. CO. OF FLORIDA v. HALL BROS. PRESS, Inc.
• Court: Florida Supreme Court

189 So. 243

138 Fla. 176

GUARANTY LIFE INS. CO. OF FLORIDA v. HALL BROS. PRESS, Inc.

Florida Supreme Court

May 19, 1939

Rehearing Denied June 8, 1939.

En Banc.

Certiorari to Circuit Court, Duval County; De Witt T. Gray, Judge.

Action on the common counts by Hall Brothers Press, Inc., against the Guaranty Life Insurance Company of Florida, to recover a printing bill. To review a judgment of the circuit court affirming a judgment of the civil court of record striking on plaintiff's motion, a plea of 'never was indebted as alleged,' defendant brings certiorari.

Petition for certiorari denied.

COUNSEL

William D. Morgan and H. L. Anderson, both of Jacksonville, for petitioner.

Fant &amp Stanly, of Jacksonville, for respondents.

OPINION

BROWN Justice.

We are dealing here with a petition for writ of certiorari to review the judgment of the Circuit Court for Duval County affirming the judgment of the Civil Court of Record of Duval County. The question presented is whether the Civil Court of Record proceeded in accordance with the essential requirements of the law in striking, on plaintiff's motion, a plea of 'never was indebted as alleged,' after a hearing of which nine days notice had been given.

This suit was instituted on the common counts to recover a printing bill; one count for work done and material furnished, and on account stated, one for goods bargained and sold, and one for interest. A detailed itemized statement of the account was attached to the declaration as a bill of particulars.

In affirming the judgment of the trial court, the Circuit Court for Duval County, speaking through Judge De Witt T. Gray, had this, among other things, to say:

'The Court finding from the record that Guaranty Life Insurance Company had eight clear days' notice of the hearing on the motion to strike its sole plea as sham under common law rule 22; that Hall Brothers Press, Inc., sustained its case by sufficient competent evidence at said hearing; that at said hearing Guaranty Life Insurance Company completely failed to show that any issue of fact actually existed to support its plea of 'never was indebted as alleged;' and without having made any formal motion at the commencement of the hearing for a postponement or for a continuance of the hearing at its conclusion it 'announced that it was unable to produce testimony at this time of L. Knabb and Dr. C.J. Baumgartner but would at a later date' all without offering any excuse for the non-production of their affidavits or their absence, in spite of lengthy notice of the hearing and without informing the Court of the nature of the evidence it proposed to produce by said witnesses, and

'It further appearing to this Court that had Guaranty Life Insurance Company's Motion to vacate been granted and the affidavits of said L. Knabb, Dr. C.J. Baumgartner, and George Guimond in support thereof been available at the original hearing the result of the case would have been the same, and

'It further appearing to the Court that said affidavits, do not show payment, partial payment or accord and satisfaction. The Guaranty Life Insurance Company by the record admits the existence of an obligation, fails to question any item of the claim proffered, fails to state the amount it considers due plaintiff and finally and significantly omits any statement of the particulars in which Plaintiff's claim is in error.

'The Court being of the opinion from an examination of the entire record that a reversal for possible incidental errors complained of would prove ineffectual because the same result would inevitably be reached a second time, even had the excluded evidence been admitted,

'It is thereupon considered and ordered that the judgment be and the same is hereby affirmed.'

Rule 22, of the Revised Common Law Rules for the government of trial courts in common law cases, promulgated by this Court in 1936, reads as follows:

'If the plaintiff in an action ex contractu or of replevin deems any plea filed by a defendant to be a sham he may, before said cause is set for trial, move to strike such plea and the court, upon not less than five days' notice, shall hear said motion, taking the evidence of the respective parties, and if the motion be sustained the plea shall be stricken. If there be no other plea on file default judgment shall be entered.

'Such motion to strike shall be sworn to and shall set forth fully the facts on which the plaintiff relies, and may be supported by affidavits. No traverse of the motion shall be required of the defendant.'

The general question involved in this case is very ably treated in an opinion by the late Mr. Justice Davis, then Chief Justice of this Court, in the case of Rhea v. Hackney, 117 Fla. 62, 157 So. 190, 194. This opinion was handed down in 1934, two years before the adoption of Rule 22. It will be observed that this rule is rather broad in its terms and applies to 'any plea filed by defendant', in actions ex contactu or of replevin. Thus the rule is broad enough to cover pleas of the general issue; and this we think is a sufficient reply to the very urgent contention on the part of the petitioner here that this power to strike pleas does not apply to a plea of the general issue, which plea throws upon the plaintiff the burden of proving his case. But it is a power which should be cautiously exercised and only in clear cases.

In this connection, it was said in the case of Rhea v. Hackney supra, that this power is seldom if ever authorized to be exercised by a trial court as to mere denials amounting to pleas of the general issue appearing to have been interposed by the defendant for the purpose of putting on the plaintiff the burden of establishing his own alleged cause of action in the first instance by offering...