Vining v. American Bakeries Co.

• Decision Date: 17 October 1935
• Citation: 121 Fla. 122,163 So. 519
• Court: Florida Supreme Court
• Parties: VINING v. AMERICAN BAKERIES CO. et al.

163 So. 519

121 Fla. 122

VINING v. AMERICAN BAKERIES CO. et al.

Florida Supreme Court

October 17, 1935

En Banc.

Error to Circuit Court, Dade County; H. F. Atkinson, Judge.

On motion for rehearing.

Rehearing denied.

For former opinion, see 163 So. 396.

COUNSEL E. F. P. Brigham, of Miami, and William K Whitfield, of Tallahassee, for plaintiff in error.

Kurtz &amp Reed and Marion E. Sibley, all of Miami, for defendants in error.

OPINION

PER CURIAM.

This case was first decided by this court March 1, 1935. Vining v. American Bakeries Co., 118 Fla. 572, 159 So. 670. Rehearing was shortly thereafter applied for and denied, after the mandate had been lodged in the circuit court an extraordinary motion for a new trial was filed in the lower court, accompanied by the filing of an extraordinary motion in this court to recall the mandate and grant permission to the circuit court to consider the extraordinary motion for a new trial. All this took place at the January, 1935, term of the Supreme Court. On September 28, 1935, at the present (June, 1935) term of this court the extraordinary motion to recall the mandate, etc., was denied. Vining v. American Bakeries Co., 163 So. 396. A petition for rehearing of the last order is now before this court, accompanied by an application for leave to present oral argument on same. The case had already been orally argued at length on both the original hearing and on the extraordinary motion.

The record shows that the father and next friend of the minor plaintiff (who was only eighteen months old at the time of the injuries sued for) has committed suicide since this case was first disposed of in this court on March 1, 1935. The claim sought to be advanced in the lower court by petitioner here is that two witnesses for the successful plaintiff Eugenia Vining, whose father is now dead, testified falsely at the trial of her case and were so induced to testify by the deceased father. Wherefore, it is argued, the defendant below should be awarded a new trial in order to have the opportunity of rebutting the testimony of the two alleged perjured witnesses by means of a retrial. Criminal charges have been lodged against the two alleged perjured witnesses but such criminal accusations have not been brought to trial nor have convictions for the alleged perjury been obtained as a basis of support for the unusual motion to reopen the case now being made and insisted upon, both in this court and in the circuit court.

The child's father, in whose name as next friend the suit below was prosecuted to final judgment, would be a most material witness in plaintiff's behalf if a new trial were ordered. As has been said, the child's father committed suicide shortly after the perjury charges were suggested in the circuit court. He left behind him as he did so a suicide note, saying in part:

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