Kight v. American Eagle Fire Ins. Co. of New York

• Decision Date: 11 March 1938
• Parties: KIGHT v. AMERICAN EAGLE FIRE INS. CO. OF NEW YORK.
• Court: Florida Supreme Court

179 So. 792

131 Fla. 764

KIGHT v. AMERICAN EAGLE FIRE INS. CO. OF NEW YORK.

Florida Supreme Court

March 11, 1938

Error to Circuit Court, Hillsborough County; L. L. Parks, Judge.

Action by A. M. Kight against the American Eagle Fire Insurance Company of New York on a fire policy with a standard mortgage clause to plaintiff. To review an order granting a new trial after the return of a verdict for plaintiff, plaintiff brings error.

Affirmed.

COUNSEL W. B. Dickenson, Joseph E. Williams, and Edwin R. Dickenson, all of Tampa, for plaintiff in error.

Sutton Reeves & Hobbs, of Tampa, for defendant in error.

OPINION

CHAPMAN Justice.

This is a writ of error sued out to an order of the circuit court of Hillsborough county, Fla., granting a new trial. Plaintiff sued defendant to recover for a fire loss on a policy of fire insurance issued by the defendant to Augusta L. Gillean, with a standard mortgage clause to the plaintiff. The policy of insurance was for the sum of $2,000, while the face of the notes and mortgage was in the sum of $4,500. The declaration is in the form prescribed by the statute.

The defendant filed pleas to plaintiff's declaration, viz (1) Denial that assured was indebted to the plaintiff; (2) denial of any unpaid indebtedness from the assured to the plaintiff; (3) denial of a valid mortgage on the real estate and against the proceeds of the insurance (4) that the equitable ownership of the property was not in plaintiff but plaintiff's father, John C. Sumner; (5) that John C. Sumner was the owner of the note, mortgage, and insurance; (7) plaintiff held the note and mortgage as trustee for her father; (8) plaintiff was not the sole owner of the insured property; (9) the true value of the insured property did not exceed $1,000.

The cause was submitted on the aforesaid issues, with appropriate instructions, and a verdict was rendered in behalf of the plaintiff. The defendant filed a motion for a new trial on a number of grounds. On the 22d day of March, 1937, the court below granted the motion for a new trial on the grounds of the motion numbered 3 to 8, inclusive, and 19 to 22, inclusive, viz.:

'3rd. Because said verdict is contrary to the law and the evidence.

'4th. Because the jury, in determining the questions of fact involved, did not consider material evidence of the defendant;

'5th. Because the jury, in determining the questions of fact, did not consider the charges of the Court sufficiently;

'6th. Because the jury failed to give due consideration to the evidence of the defendant, and rendered its verdict contrary to the law, the justice of the law, and the manifest weight of the evidence;

'7th. Because this cause has heretofore been tried in this Court, and the jury brought in a verdict in favor of the defendant, the said cause appealed to the Supreme Court of Florida, 125 Fla. 608, 170 So. 664, which court reversed the case for a new trial solely on the question of admissibility of certain evidence, and during the last trial of this cause counsel for the plaintiff, in the presence of the jury, made the statement that he had obtained a reversal of the cause in the Supreme Court, and the jury in determining the issues in this cause was prejudiced by the remarks of said counsel;

'8th. Because the jury was influenced and prejudiced by statements of fact made by counsel for plaintiff in argument of the case, in that counsel did state before the jury, in his argument, the facts and circumstances surrounding a certain fire in Ybor City, Tampa, Florida, which counsel referred to as the Irish Caf£ suit, did state facts and circumstances in connection with a certain explosion and fire in Ybor City, referred to by counsel in his argument as the Falsome Bar case, that counsel for plaintiff, in his argument to the jury, did likewise state that during his legal experience he had represented a large number of people charged with arson; that he knew, under the facts and circumstances in this case, that the man or men who were seen leaving the fire immediately after it started, did not set fire to it; that counsel for plaintiff, in arguing the case to the jury, did state to the jury that he had known one of the witnesses in the case for fifteen years, and had known the witness's wife for some thirty-five years, that some thirty-five years ago he had drawn certain papers and represented the witness's wife, all of which was prejudicial to the defendant before said jury; * * *

'19th. Because the verdict is contrary to law, the justice of the cause, and the manifest weight of the evidence.

'20th. Because of improper remarks made by counsel for plaintiff in the argument of the case to the jury, in that said attorney did refer to the defendant as a big corporation or insurance company, which collected the premiums, put them in its pocket, but refused to pay losses, which remarks were prejudicial to the defendant;

'21st. Because of improper remarks made by counsel for plaintiff in the argument to the jury, in that counsel for plaintiff, in his argument to the jury, in referring to another fire in which the title to the property stood in the name of Minnie A. Sumner, did state that if the insurance company involved had known or believed that the said Minnie A. Sumner was not the sole and unconditional owner of the property, that the said insurance company would not have paid said claim, which remarks were highly prejudicial to the defendant in this cause;

'22nd. Because of improper remarks of counsel for plaintiff, in his argument before the jury, in that counsel for plaintiff, in arguing the case to the jury, did state, as a matter of fact, that a fire inside a house that is closed will go out and not burn the building; that there was no testimony to such effect given at the trial of said cause, and no basis whatever for said remarks by counsel; and that said remarks were prejudicial to the rights of the defendant.'

This court has held, when considering several grounds of a motion for a new trial, if either ground thereof finds substantial support in the record, the said order granting a new trial will not be disturbed on writ of error to this court. See Gibson v. Lehde, 128 Fla. 703, 175 So. 726. Likewise it has been held, even where there is a conflict in the evidence, the order granting a new trial will not be disturbed in the absence of abuse of discretion and violation of settled law. See Woods v. Atlantic C. L. R. R. Co., 100 Fla. 909, text 911, 130 So. 601, and authorities cited. In the case of Herrin v. Avon Mfg. Co., 87 Fla. 385, text 387, 100 So. 174, 175, this court said:

'The order of the trial court in granting the new trial is presumably proper. It does not affirmatively appear from the record that judicial discretion has been abused, resulting in injustice, or that any law has been violated in granting a new trial.'

In Beckwith v. Bailey, 119 Fla. 316, text 325, 161 So. 576, 579, this court had before it for review an order granting a motion for a new trial on several different grounds and the order granting the new trial failed to name or specify any ground on which the ruling was based, and the order granting the new trial was affirmed, and in doing so this court said:

'Where the trial court grants a new trial on a motion containing several grounds without stating any ground on which the ruling was based, the order will be affirmed when authorized by any ground of the motion. See Beverly v. Hardaway, 66 Fla. 177, 63 So. 702; Ruff v. Georgia, S. & F. R. Co., 67 Fla. 224, 64 So. 782; Aberson v. Atlantic Coast Line R. Co., 68 Fla. 196, 67 So. 44; Anthony Farms Co. v. Seaboard Air Line Ry., 69 Fla. 188, 67 So. 913; Mizell Live Stock Co. v. Pollard, 71 Fla. 192, 71 So. 31; Carney v. Stringfellow, 73 Fla. 700, 74 So. 866; Goodno v. South Florida Farms Co., 95 Fla. 90, 116 So. 23; Luria v. Bank of Coral Gables, 106 Fla. 175, 142 So. 901, 143 So. 598; Scott v. National City Bank of Tampa, 107 Fla. 818, 139 So. 370, 142 So. 650, 143 So. 444, 146 So. 573; Preacher & Co. v. Sarasota Bay Hotel Co., 112 Fla. 432, 150 So. 590.'

In considering an order granting a new trial in the case of Carney v. String-fellow, 73 Fla. 700, text 703, 74 So. 866, 867, it was said by Mr. Justice Whitfield, in behalf of the court:

'On writ of error taken under the statute [Gen.St.1906, § 1695, now Comp.Gen.Laws 1927, § 4615] to an order granting a new trial in a civil action at law the only questions to be considered are those involved in the order granting a new trial.

'A stronger showing is required to reverse an order allowing a new trial than to reverse one denying it.

'Where the trial court grants a new trial containing several grounds without stating any ground upon which the ruling was based, the order will be affirmed if any ground of the motion is sufficient to authorize the granting of the new trial. And it must be assumed that the court based the order on the grounds that warrant it.

'Where a new trial is granted, and there is such a conflict in the evidence that this court cannot say the trial judge abused his discretion in granting such new trial, his ruling will not be disturbed.

'Where the evidence on a material issue in a cause is conflicting, and it does not so preponderate in favor of the verdict as to show an abuse of discretion or the violation of any provision or settled principle of law in granting a new trial, the action of the trial court will not be disturbed on writ of error.

'There are so many matters occurring in the course and progress of a judicial trial that, in the opinion of the judge who tried the case, may effect the merits and justice of the cause to the substantial injury of one of the parties, that of necessity a large discretion should be...