Hillsboro Plantation v. Plunkett

• Decision Date: 13 June 1952
• Citation: 59 So.2d 872
• Parties: HILLSBORO PLANTATION, Inc. v. PLUNKETT.
• Court: Florida Supreme Court

Page 872

59 So.2d 872

HILLSBORO PLANTATION, Inc. v.PLUNKETT.

Supreme Court of Florida, Division A.

June 13, 1952.

Rehearing Denied Aug. 5, 1952.

Earnest, Lewis, Smith & Jones, West Palm Beach, for appellant.

Baynes, Garman & Phillips, West Palm Beach, for Robert L. Plunkett, appellee.

Charles B. Fulton, West Palm Beach, and Blackwell, Walker & Gray, Miami, for Florida Power & Light Co., cross-appellee.

TERRELL, Justice.

Robert L. Plunkett instituted this action against Florida Power and Light Company and Hillsboro Plantation, Inc., both being Florida Corporations, to recover damages for personal injuries.Plunkett was a lineman and alleges that he was injured by the negligence of defendants in permitting the line on which he was working to become energized without his knowledge.There was an answer to the complaint containing (1) a general denial of any negligence on the part of defendants and (2)plaintiff was guilty of contributory negligence.A trial on the issues so made resulted in a verdict of 'not guilty' as to both defendants.A motion for new trial was denied as to Florida Power and Light Company but was granted as to Hillsboro Plantation, Inc.This appeal was prosecuted by the latter.There was a cross-appeal as to Florida Power and Light Company.

The first question presented for our determination may be stated as follows: Are the decisions of this Court, in so far as they require filing and presentation of motions for new trial'to the trial court,' abrogated by 30 F.S.A. Rule 41 of the Florida Common Law Rules so that it is now sufficient that such motions be filed with the Clerk of the Court?

The answer to this question turns on the interpretation of Rule 41andSection 54.24, F.S.A. in the light of our decisions interpreting the latter.

The pertinent part of Rule 41, Florida Common Law Rules is as follows:

'(a)Motions for new trial shall be made by filing the same and the reasons therefor, in writing, to the trial judge, or by placing the same and the reasons therefor on the motion docket.The entry of such motion for new trial shall not preclude the entry of the judgment on the verdict.

'(b) Such motion shall be made within 4 days after the rendition of the verdict, but the trial judge, upon cause shown, may within such 4 days, by order extend the time for making and presentation of such motions, not to exceed 15 days from the rendition of the verdict.'

The pertinent part of Section 54.24, F.S.A. is as follows:

'Motions for new trials in civil cases shall be made by filing the same and the reasons therefor, in writing, in the court or by placing the same and the reasons therefor on the motion docket.Such motions shall be made within four days after the rendition of the verdict and during the same term, but the judge upon cause shown may, within such four days and during the same term, by order extend the time for making and presentation of such motions, not to exceed fifteen days from the rendition of the verdict.In all cases of extension of time for making such motions, a copy of the motion to be presented to the judge shall be served on the opposite party, or his attorney, with three days' notice of the time and place that the same will be presented and heard. * * *'

The decisions of this Court referred to in the quoted question are Bunch v. Johns, 85 Fla. 22, 95 So. 235;Citizens' Bank of Williston v. Williams, 91 Fla. 589, 110 So. 252;Bishop v. Chillingworth, 120 Fla. 740, 163 So. 93, andHowland v. Cates, Fla., 43 So.2d 848.These decisions interpreted the last cited statute.

A comparison of the quoted part of Rule 41, with the quoted part of the statute reveals no material difference in content.The words 'during the same term' appearing twice in the statute are omitted in the Rule and the words 'the judge' used in the statute...