Shayne v. Saunders

• Decision Date: 29 September 1937
• Citation: 129 Fla. 355,176 So. 495
• Parties: SHAYNE v. SAUNDERS.
• Court: Florida Supreme Court

176 So. 495

129 Fla. 355

SHAYNE v. SAUNDERS.

Florida Supreme Court, Division A.

September 29, 1937

Rehearing Denied Nov. 5, 1937.

Certiorari to Circuit Court, Dade County; H. F. Atkinson, Paul D Barnes, and Worth W. Trammell, Judges.

Suit by Frederick I. Saunders against William L. Shayne, trading and doing business as the Dixie Music Company. Judgment of the Civil Court of Record for the plaintiff was affirmed in the Circuit Court, and the defendant brings certiorari.

Writ of certiorari theretofore issued quashed, and cause dismissed.

COUNSEL

Patterson, Blackwell & Knight, of Miami, for petitioner.

McKay Dixon & DeJarnette, of Miami, for respondent.

OPINION

BUFORD Justice.

On writ of certiorari we consider the record made in the civil court of record in and for Dade county, Fla., and reviewed on writ of error by the judges of the circuit court of the Eleventh judicial circuit of Florida in and for Dade county.

In the circuit court the plaintiff in error filed 24 assignments of error. He contends that the circuit court considered only one assignment of error, and affirmed the judgment. This assumption cannot be indulged. It is the duty of appellate courts to consider the assignments of error as presented by brief prepared in conformity with rule 20, and it will be presumed, in the absence of contrary affirmative showing by certificate of the appellate court, that the court has performed its duty in this regard, and that where a case is affirmed no reversible error has been found by the court and where it is reversed on a stated point, unless the contrary appear in the judgment or by certificate of the appellate court, it will be assumed that all other assignments of error have been examined and found to be without merit.

The question presented, based upon the assignments of error upon which one of the circuit judges held that the judgment should be reversed, was as follows:

'Does a charge in the trial court, in an automobile collision case, in which the jury is instructed that even if they believe from the evidence that plaintiff was driving at a high rate of speed, unless they further believe that the speed of his car proximately produced or brought about the collision, plaintiff's conduct does not amount to contributory negligence, violate the law of Florida to the extent that the trial and determination of the cause in accordance with said charge, if followed, would not be in accordance with the essential requirements of law?'

The other two circuit judges did not agree with the one who thought the judgment should be reversed, and Judge Atkinson prepared an opinion which was concurred in by Judge Barnes, as follows:

'A careful reading of the bill of exceptions shows there was ample evidence for the plaintiff to sustain the verdict of the jury. The charge requested by the plaintiff referred to in Judge Trammell's opinion is not altogether in proper form but the error, if any, is merely technical and certainly was overcome by the requested charges of defendant, twenty-nine in number, all of which were given by the court, the majority being upon the subject of contributory negligence.

'The Harmless error statute, Section 4499, C.G.L., is as follows: 'No judgment shall be set aside or reversed, or new trial granted by any court of the State of Florida in any cause, civil or criminal, on the ground of misdirection of the jury or the improper admission or rejection of evidence or for error as to any matter of pleading or procedure, unless in the opinion of the court to which application is made, after an examination of the entire case it shall appear that the error complained of has resulted in a miscarriage of justice. This section shall be liberally construed.' (Compiled General Laws of Florida, 1927.)

'Under the Florida law as laid down by this statute it would be error in my opinion to reverse a judgment based upon a verdict of a jury for the sole reason that there was a technical error in a charge to the jury requested by counsel for the plaintiff, when the error, if any, had been fully over-come by counter-acting instructions. Our own Supreme Court holds that 'Charges that are not technically accurate will not cause a reversal where correct charges are given on the point and it appears that no injury could reasonably have resulted from the technical inaccuracy.' See Florida East Coast R. Co. v. Lassiter, 59 Fla. 246, 52 So. 975, 976.

'In my opinion the judgment of the Court below should be affirmed.

'And it is so ordered.

'This April 14th 1936.'

The charge complained of was in the following language: 'I charge you further, gentlemen of the jury, that even if you believe that Mr. Saunders was operating his car at a high rate of speed, unless you further believe that the rate of speed at which his car was being operated proximately produced or brought about the collision, then I charge you that his conduct in so driving does not constitute contributory negligence, and that in spite of his conduct under such circumstances he would be entitled to recover if you believe from the evidence that the defendant's truck was being operated negligently.'

This charge must be considered along with other charges given. We find from the record that the trial court charged the jury in this connection, as follows:

'In order for the plaintiff, Frederick I. Saunders, to recover in this action, it is necessary for you to find, to your satisfaction and from a preponderance of the evidence, that the defendant was negligent in some manner in connection with said plaintiff's damage and that such negligence on the part of the defendant was the proximate cause and the sole cause which brought about and produced the damages which the said plaintiff complains of. Your attention is called to the pleas of the defendant in each of these cases, charging the plaintiffs, respectively, with having, by some alleged negligent act on their part considered separately contributed proximately to the bringing about or causing the injuries and damages of which they complain in these two suits. These pleas of contributory...