Warner v. Goding

• Decision Date: 06 February 1926
• Citation: Warner v. Goding, 91 Fla. 260, 107 So. 406 (Fla. 1926)
• Parties: WARNER et al. v. GODING.
• Court: Florida Supreme Court

107 So. 406

91 Fla. 260

WARNER et al. v. GODING.

Florida Supreme Court

February 6, 1926

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

Action by Charles E. Goding against H. G. Warner and others, as trustees of the Purity Springs Water Company.Judgment for plaintiff, and defendants bring error.

Reversed.

Syllabus by the Court

SYLLABUS

Test of sufficiency of declaration is whether it alleges distinctly every fact essential to plaintiff's right of recovery with certainty, clearness, and conciseness.The test of the sufficiency of a declaration is whether or not it alleges distinctly every fact essential to the plaintiff's right of action, such facts to be characterized by certainty clearness, and conciseness, that the material issue or issues may be determined quickly and with certainty, and that the defendant may be apprised of the charge or charges against him with that degree of clearness and definiteness as will enable him to prepare his defense properly.

Plaintiff's right of recovery is confined to cause of action stated in his declaration, and, if he fails thereon, he cannot prove and recover on any ground not stated or alleged.Plaintiff's right of recovery is confined to the cause of action stated in his declaration, and, if he fails on the ground so stated, he cannot be permitted to prove and recover on any ground not stated or alleged.

Motion for new trial in civil cases will be stricken, if statutory provisions are not strictly followed (Rev. Gen. St. 1920, § 2811).A motion for a new trial in civil causes will be stricken when the provisions of section 2811,Revised General Statutes of Florida 1920, providing for such motion, are not strictly followed.

At early common law, verdict of jury was regarded as conclusive and new trials were not granted; at early common law, party injured by unjust verdict might seek remedy by suit in equity, writ of attaint against jury, or by writ of venire de novo.Early in the history of the common law the verdict of a jury was regarded as conclusive, and new trials were not granted, a party injured by an unjust verdict might seek his remedy by suit in equity, writ of attaint against the jury or by writ of venire de novo.

Prior to practice of granting new trial, writ of attaint was most common method of reversing unwarranted verdict.Prior to the practice of granting new trials, the writ of attaint against the jury was the most common means of reversing an unwarranted verdict, and the hardships attending the writ of attaint seem to have led the courts first to modify verdicts and then to grant new trials.

Application for new trial is addressed to sound legal discretion of trial court, new trial should be granted only when substantial rights have been so violated as to make it reasonably clear that fair trial was not had; there is no limit to number or character of grounds which may be presented or urged in support of motion for new trial.A new trial is not a matter of right in this state, but is addressed to the sound legal discretion of the trial court, and should be granted only when substantial rights have been so violated as to make it reasonably clear that a fair trial was not had.For the purpose of such showing there is no limit to the number or character of the grounds that may be presented and urged in support of said motion.

Motion for new trial is not waiver of exceptions; if motion for new trial cannot be considered on appeal, and exceptions taken during trial are properly embodied in record, ruling of circuit court in such respect can be reviewed.A motion for a new trial is not a waiver of exceptions, and, if for any reason such motion cannot be considered in this court, and the exceptions taken during the trial are properly embodied in the record, we can review the ruling of the circuit court in this respect.

Primary purpose of motion for new trial is to test sufficiency of all evidence to sustain verdict; any portion of evidence of material witness may be reviewed by appellate court, if such evidence was duly excepted to at trial or hearing, in absence of motion for new trial.The primary purpose of a motion for new trial under our practice is to test the sufficiency of all the evidence to sustain the verdict, though any portion of the evidence of a material witness may be reviewed by this court, if such evidence was duly excepted to at the trial or hearing, in the absence of a motion for a new trial.

Order denying motion for instructed verdict may be reviewed by appellate court, if duly excepted to; exception to order denying motion for instructed verdict is properly embodied in record and assigned and argued as error in appellate court.An order denying a motion for an instructed verdict may be reviewed by the appellate court, if duly excepted to, and such exception is properly embodied in the record and assigned and argued as error in the appellate court.

Decision in Southern Cotton Oil Co. v. Anderson,86 So. 62980 Fla. 441, 16 A. L. R. 255, explained.

Master cannot be held for injury by servant's use of automobile for personal affairs beyond scope of employment, and without knowledge or consent of master.The master cannot be held for injury caused by the act of his servant, when such act was beyond the scope of his employment, and without the knowledge, acquiescence, or consent of the master.

COUNSEL

Sparkman & Knight, of Tampa, for plaintiffs in error.

Wm. H. Jackson and Peyton T. Jordan, both of Tampa, for defendant in error.

OPINION

TERRELL J.

Charles E. Goding brought an action against H. G. Warner, C. R. Dunbar, and H. P. Dodge, as trustees of the Purity Springs Water Company, a trust association, to recover damages for personal injuries resulting from having been run over by a truck belonging to and being at the time of the accident driven by an employee servant of defendants.To the amended declaration, defendants entered the pleas of the general issue and contributory negligence, on which trial was had, resulting in a verdict and judgment for the plaintiff in the sum of $4,000.Defendants took writ of error to this judgment.

Assignments of error 1 to 8, inclusive, challenge the sufficiency of the amended declaration as amended to state a cause of action against the defendants.

By repeated decisions of this court the test of the sufficiency of a declaration is whether or not it alleges distinctly every fact essential to the plaintiff's right of action, such facts to be characterized by certainty, clearness, and conciseness, that the material issue or issues may be determined quickly and with certainty, and that the defendant may be apprised of the charge or charges against him with that degree of clearness and definiteness as will enable him to prepare his defense properly.Milligan v. Keyser,42 So. 367, 52 Fla. 331;Royal Phosphate Co. v. Van Ness,43 So. 916, 53 Fla. 135;Kirton v. Atlantic Coast Line R. Co.,49 So. 1024, 57 Fla. 79;Sovereign Camp of W. O. W. v. McDonald,60 So. 566, 76 Fla. 599;Florida East Coast R. Co. v. Knowles,67 So. 122, 68 Fla. 400;Seaboard Air Line Ry. v. Rentz & Little,54 So. 13, 60 Fla. 429.

It is also well settled that plaintiff's right of recovery is confined to the cause of action stated in his declaration, and, if he fails on the ground so stated, he cannot be permitted to prove and recover on any ground not stated or alleged.Louisville & N. R. Co. v. Guyton,36 So. 84, 47 Fla. 188;Hollingsworth v. Norris,81 So. 782, 77 Fla. 498.It cannot be said that the declaration conforms in all respects to the rules of good pleading, yet it is not so delinquent in its material prerequisite as to warrant us in holding it bad.

The ninth to twenty-eighth assignments of error, inclusive, relate to the admission or rejection of testimony, but, since the cause must be reversed on other grounds, a discussion of these assignments will serve no useful purpose here.

The twenty-ninth assignment of error is grounded on the refusal of the trial court to grant the motion of defendants for an instructed verdict made at the conclusion of all the testimony and based on the lack of sufficient lawful evidence to support a verdict for the plaintiff.

Defendant in error contends that this assignment cannot be considered at this time, because it involves the consideration of the sufficiency of the evidence to support the verdict, and that, the motion for new trial having been stricken, the sufficiency of the evidence to support the verdict cannot now be considered.The record shows that the verdict was returned January 3, 1924, and that on January 5, 1924, defendants were granted 15 days from the date of rendition of the verdict to file and present their motion for a new trial, The motion for new trial was not filed till January 19, 1924, 16 days from the rendition of the verdict.In this state of the record, under section 2811, Revised General Statutes of Florida, there was no legal motion for a new trial for the court to consider, so the motion to strike was properly granted.De Soto Holding Co. v. Boyer,97 So. 205, 85 Fla. 517.

The motion for new trial having been stricken, can the legal sufficiency of the evidence to support the verdict be now considered on the denial of the motion for an instructed verdict, the denial of said motion having been assigned as error and argued here?The answer to this question is determinative of whether or not the real issue in the cause can be reached.

Early in the history of the common law the verdict of a jury was regarded as conclusive, and new trials were not granted.A party, injured by an unjust verdict, might seek his remedy by suit in equity, writ of attaint against the jury, or by writ of venire de novo.Owing to the failure...