Ivey v. Southern States Power Co.

• Decision Date: 02 June 1937
• Parties: IVEY v. SOUTHERN STATES POWER CO.
• Court: Florida Supreme Court

174 So. 834

128 Fla. 345

IVEY v. SOUTHERN STATES POWER CO.

Florida Supreme Court

June 2, 1937

Error to Circuit Court, Jackson County; E. C. Welch, Judge.

Action by Carrie L. Ivey against the Southern States Power Company. Judgment for the defendant, and the plaintiff brings error.

Reversed.

ELLIS C.J., and BROWN, J., dissenting.

COUNSEL John H. Carter & John H. Carter, Jr., of Marianna, for plaintiff in error.

James H. Finch, of Marianna, for defendant in error.

OPINION

BUFORD Justice.

The writ of error brings for review final judgment in favor of defendant on motion to strike amended declaration being sustained. This is the second appearance of this case in this court. See Southern States Power Co. v. Ivey, 118 Fla. 756, 160 So. 46, 47. In that case we held in effect that the evidence failed to show any contractual liability on the part of Southern States Power Company in behalf of Mrs. Ivey and, in that connection, said:

'If that corporation may be held to liability in the transactions, it must be on account of the fraud and deceit practiced by the sellers of the stock to Mrs. Ivey, but there is no evidence of any such fraud perpetrated by them upon her, nor is there any evidence that the local corporation received any part of the money paid by Mrs. Ivey in either transaction. In the last transaction, Mr. Hightower received the money, Mr Kynes receiving a commission from him for selling the stock.'

The judgment of the lower court in favor of Mrs. Ivey was reversed, the present writer dissenting.

The original declaration was as follows: 'Jackson County, to wit:

'Carrie L. Ivey, the plaintiff sues Southern States Power Company, a corporation, the defendant, in an action of assumpsit to wit:

'For that the defendant at the institution of this suit was indebted to the plaintiff for money payable in the sum of $870.00 in money had and received by the defendant for the use of the plaintiff, and interest thereon at legal rate from November 1, 1932. That although same is long past due no part thereof has been paid, and defendant has refused to pay the same.

'Wherefore plaintiff sues and claims damages in the sum of $1,000.00.'

When the mandate went down plaintiff moved to be allowed to amend her declaration. The motion was granted and amended declaration was filed. The amended declaration sets out in detail the transaction between the plaintiff and defendant as per the contention of the plaintiff. The amended declaration alleges in substance that the defendant represented to the plaintiff that Central Public Service Corporation was a public utility corporation owning and operating public utility plants including the defendant company and its plant in Marianna, and its shares of stock were a choice investment absolutely safe and sound, and that the plaintiff relied upon and believed such representations to be true, when in truth and in fact Central Public Service Corporation owned no public utility plants, nor any stock in defendant company, but was a mere holding company having no assets in the State of Florida, nor authorized to do business in Florida, nor having any assets whatever, except invisible and intangible stock in other corporations having no assets in Florida. That defendant, through its employees, under such representations induced the plaintiff to buy certain shares of stock of said Central Public Service Corporation for which she paid to defendant large sums of money named in the declaration, defendant agreeing at the same time that said Central Public Service Corporation would buy back and take up said stock at any time plaintiff should desire and so request; that thereafter the plaintiff demanded of the defendant that said Central Public Service Corporation buy back and take up said certificates of stock, but that defendant refused to do so, giving as its reason that said Central Public Service Corporation had ceased taking up its stock and that dividends had ceased. Then: 'Plaintiff avers that by reason of the fraud and deception practiced upon her by the defendant in the premises, and its default in making good its promises aforesaid, she has been damaged in the sum of $870.00 with interest thereon from November 1, 1932, wherefore she sues and claims damages in the sum of $1,500.00.'

Motion was made to strike the amended declaration upon the grounds that the amended declaration comes after judgment and sets up an entirely new and distinct cause of action, being an action in fraud sounding in tort, whereas the action originally commencing and prosecuting to a judgment is an action in assumpsit; (2) that the amended declaration of the plaintiff introduces and sets up an entirely new and distinct cause of action than that on which the case was originally based, which is not permitted by the laws and rule of pleading in the State of Florida; (3) that the amended declaration amounts in law to departure in pleading not permitted by the law and rule of practice; (4) that there are, or may be, defenses to the cause of action stated in the amended declaration which would not be available if such cause of action were permitted to be filed as an amendment to the original action; (5) that the cause of action stated in the amended declaration shows upon its face that it is barred by the statute of limitations; (6) that the cause of action stated in the amended declaration is barred by the statute of limitations.

Motion to strike was granted and judgment entered in favor of defendant.

The motion to strike appears to be what is known as a speaking motion. The first ground is in effect a plea and issue cannot be joined on motion to strike.

The amended declaration considered in pari materia with the opinion of this court in the case of Southern States Power Co. v. Ivey, supra, shows that the cause of action described in the amended declaration is the same cause of action declared on in the original declaration, but declared on in different form. Both declarations, when considered together with the record, appear to be based on the same cause of action sued upon under one count in the original declaration and on a different count in the amended declaration. Whether or not a declaration is legally sufficient as a pleading may not be determined on motion to strike, if the allegations of the declaration allege sufficient facts to constitute a cause of action. Southern Home Insurance Co. v. Putnal, 57 Fla. 199, 49 So. 922; Johnson et al. v. City of Sebring, 104 Fla. 584, 140 So. 672, and 675; Ray v. Williams et al., 55 Fla. 723, 46 So. 158; Burr et al. v. Hull et al., 66 Fla. 20, 63 So. 300; Hammond v. A. Vetsburg Co., 56 Fla. 369, 48 So. 419.

Motion to strike a pleading admits the truth of all facts well pleaded. Randall v. Mickle, 103 Fla. 1229, 138 So. 14, and 141 So. 317, 86 A.L.R. 804; Batchelder v. Prestman, 103 Fla. 852, 138 So. 473.

In Monroe R. Lightsey et ux. v. A. P. Butts et al., 89 Fla. 185, 104 So. 852, 853, we said:

'Unless wholly irrelevant or otherwise improper, a pleading should not be stricken. Oneida Land Co. v. Richards, 73 Fla. 884, 75 So. 412; Burr v. Hull, 66 Fla. 20, 63 So. 300; Guggenheimer & Co. v Davidson, 62 Fla. 490...