International Lubricant Corp. v. Grant

• Decision Date: 28 June 1937
• Citation: 128 Fla. 670,175 So. 727
• Parties: INTERNATIONAL LUBRICANT CORPORATION v. GRANT.
• Court: Florida Supreme Court

175 So. 727

128 Fla. 670

INTERNATIONAL LUBRICANT CORPORATION v. GRANT.

Florida Supreme Court

June 28, 1937

Rehearing Denied July 29, 1937.

Error to Circuit Court, Duval County; Miles W. Lewis, Judge.

Action by Charles R. Grant against the International Lubricant Corporation. Judgment for plaintiff, and defendant brings error.

Affirmed.

COUNSEL

Milam, McIlvaine & Milam, of Jacksonville, for plaintiff in error.

L. J Cushman, of Miami, and Fuller Warren, of Jacksonville, for defendant in error.

OPINION

BROWN Justice.

Defendant in error, as plaintiff in the court below, recovered a judgment against the plaintiff in error, International Lubricant Corporation, in the sum of $15,000 for damages for personal injuries alleged to have been caused by the negligence of the defendant's agent in the operation of an automobile belonging to plaintiff in error, as a result of which said automobile was run into and against an automobile being driven by the plaintiff.

No contention is made on behalf of plaintiff in error that the evidence in the case was not sufficient to sustain the allegations of negligence contained in the declaration, nor the seriousness of the injuries and the pain and suffering resulting therefrom. The main contention is that the verdict was excessive. There is also some argument to the effect that the court erred in not expressly restricting the jury to such future damages as the evidence made 'reasonably certain would result' from the injuries sustained.

As to the latter contention, the court did charge the jury that if they found for the plaintiff, the measure of damages would be the amount which would be compensation for the injuries 'alleged and shown by the evidence to have been proximately sustained by the plaintiff,' and also charged them that they were limited in finding for the plaintiff to only such damages as proximately resulted from the injuries complained of. In view of the fact that the defendant did not attack the correctness of the charge in any way in the lower court, took no objection thereto, and did not request that the court charge the jury that the plaintiff was entitled to recover only such future damages as the evidence makes reasonably certain would result from the injuries sustained, the defendant now has no just cause to complain in this court as to the correctness of the trial court's charge. Indeed, considering the charge as a whole, it was very fair to both sides and substantially free from error.

It is well settled that the entire charge of the court, or the entire portion of it bearing on a particular subject, must be considered in determining whether the charge is free from error. Florida Motor Transportation Co. v. Hillman, 87 Fla. 512, 101 So. 31. If a defendant wishes to have the jury more fully instructed upon any point in the case, he should specially request the desired instruction. Hobbs v. State, 77 Fla. 228, 81 So. 444; Ward v State, 124 Fla. 113, 168 So. 397.

As to the contention that the verdict was excessive, it should be observed that the bill of exceptions contained in the transcript fails to show any ruling on the defendant's motion for a new trial, and also fails to show that any exception was taken or entered to the ruling of the court on such motion. The alleged excessiveness of the verdict is not raised except by an assignment of error based on the denial of defendant's motion for a new trial. However, there is contained in the record what purports to be a copy of an order made by the circuit judge denying the motion for a new trial and allowing sixty days in which to present and settle a bill of exceptions. This is not authenticated by the trial judge himself. The only authentication is the certificate of the clerk at the end of the transcript certifying that the transcript contains a correct record of the judgment and a true and correct recital and copy of all such papers and proceedings in said cause as appears upon the records and files of his office and directed to be included in the transcript by the written demands of the parties.

In the case of Great American Insurance Co. v. Suarez, 107 Fla. 705, 146 So. 644, we held that the certificate of the clerk to the transcript cannot give authenticity to matters in pais which have not been duly authenticated by the trial court. In that case a motion to strike a motion for a new trial and an order granting such motion to strike were involved. Likewise in Jarvis v. State, 115 Fla. 320, 156 So. 310, it was held that counsel seeking to present matters in pais by incorporating them in the transcript of record proper should have such matters duly authenticated by the trial judge so as to show authentically that such matters occurred at the trial.

Counsel for plaintiff in error call attention to section 4612 C.G.L., which provides that matters exhibited only by a bill of exceptions which should have been exhibited by the record proper, or vice versa, shall be considered by the appellate court with the same force and effect as if it had been exhibitied in its proper place in the transcript. But there is a proviso in the section referred to reading: 'Provided, the same appears in the transcript so that it may be definitely identified by the appellate court and so exhibited as...