Wicoma Inv. Co. v. Pridgeon

• Citation: 188 So. 597,137 Fla. 540
• Parties: WICOMA INV. CO. v. PRIDGEON.
• Decision Date: 05 May 1939
• Court: United States State Supreme Court of Florida

188 So. 597

137 Fla. 540

WICOMA INV. CO. v. PRIDGEON.

Florida Supreme Court, Division B.

May 5, 1939

Error to Circuit Court, Lafayette County; R. H. Rowe, Judge.

Action by J. W. Pridgeon against Wicoma Investment Company, a corporation, and John Adamson, for damages for improperly suing out distress warrant against plaintiff. Judgment for plaintiff, and defendants bring error.

Affirmed.

COUNSEL

David Lanier, of Madison, for plaintiffs in error.

R. C Horne, of Madison, and Lester Summersill, of Mayo, for defendant in error.

OPINION

PER CURIAM.

This writ of error brings for review final judgment awarding damages to plaintiff for defendants improperly suing out distress warrant against plaintiff.

On June 29, 1935, the Wicoma Investment Company and John Adamson, by their contract of that date, recognized and ratified the previous renting of their property to J. W. Pridgeon for the purpose of growing a crop of sun tobacco. The rent contracted to be paid was one-third of the tobacco grown on the property. When the tobacco was ready for marketing, J. W Pridgeon divided it according to his understanding of the contract, one-third to the lessors and two-thirds to himself. But the lessors were not satisfied with the division made and on August 5, 1935, made affidavit for a distress warrant stating therein that J. W. Pridgeon was indebted to them in the sum of $500 for rent of the property, 'payable in tobacco.' On the same date the distress warrant issued and was served by delivering a copy thereof to J. W. Pridgeon and by levying upon all the tobacco located on the rented property. At the trial, verdict and judgment were rendered for defendant, which was equivalent to a judicial determination that J. W. Pridgeon had correctly divided the tobacco crop.

Thereafter, J. W. Pridgeon filed his declaration against the Wicoma Investment Co. and John Adamson to recover damages consequent upon the improper suing out of this distress warrant. Plaintiff went to trial on the first, second, third and sixth counts of his declaration, the substance of each being that the improper suing out of this distress warrant deprived plaintiff of the possession of the tobacco, and he was unable to give a forthcoming bond to repossess himself of the same, causing to tobacco to remain in storage until it 'did rot and become of no value whatsoever.' It was alleged that there were 9,000 pounds of the tobacco, worth $2,700, which was lost to plaintiff.

Defendants filed four pleas to the declaration, which were (1) that said deed was not their deed, (2) that the value of the tobacco attached is not $2,700, (3) that the amount of the tobacco attached is not 9,000 pounds, and (4) that defendants have not breached said contract.

After hearing the evidence, the argument of counsel and the charge of the court, the jury returned its verdict finding for plaintiff and assessing his damages at $1,125, with interest from August 5, 1937.

Final judgment was entered on the verdict, and then this writ of error was taken.

The only question presented by plaintiff-in-error is whether expert testimony as to the value of a certain quantity of tobacco should be accepted over warehouse receipts, which are in evidence, showing what part of the tobacco brought when sold on the warehouse floor.

Defendants' objection was embodied in a motion addressed to that part of the testimony of Sheriff Pierson, Bob Jackson, Paul Saunders and J. W. Pridgeon, relating to the amount and value of the tobacco seized under the distress warrant.

The record shows that plaintiff, carrying the burden of proof, introduced three witnesses, besides himself, to testify as to the quantity and value of the tobacco at the time the distress warrant was unlawfully issued, those being the Sheriff, who served the distress warrant, a tobacco demonstrator of twenty-five years' experience, and a man who testified he helped gather the crop involved. No objection or motion to strike was addressed to any question propounded to or answer given by plaintiff's witnesses, relating the value or quantity of the tobacco, at the time when given or at the time plaintiff rested. Thereupon defendants introduced witness Sam Buchannon, who testified as to the value and amount of the tobacco harvested from the property, placing a much lower estimate upon it than did plaintiff's witnesses. Defendants then introduced witnesses Will Buchannon and Henry Horton, who testified as to the poor quality of the tobacco; and introduced witness Harmon Duckworth, who gave testimony to impeach that of Bob Jackson. John Adamson next testified for defendants, and introduced the warehouse receipts, and defendants rested their case. At that time, no objection or motion to strike was addressed to any of the questions propounded to or the answers given by plaintiff's witnesses, relating to the value orquantity of the tobacco. Plaintiff then introduced one witness in rebuttal, and rested his case. Then for the first time, so far as this record shows, defendants moved to strike the testimony of Sheriff Pierson, Bob Jackson, Paul Saunders and J. W. Pridgeon, relating to the value and amount of said tobacco, under attachment, on August 5, 1935, on the following grounds:

'1. That said testimony is irreconcilably opposed to stated facts, and in law, would not be permitted to overcome those facts.

'2. That such testimony can raise no issue of fact for the jury to determine since it is opposed to actual facts.

'3. Said testimony is merely the opinion of the said witnesses as to what the said tobacco might or would have brought on the market, and such testimony is in direct conflict with positive evidence based upon the warehouse receipts as to what one-third of the crop actually brought.

'4. Such testimony is conjective and merely speculative, and would not be permitted to overcome the positive and direct testimony.

'Motion to strike was overruled. Exception noted.'

Where no objections are interposed to questions and the testimony is admitted without objection, the party failing to object cannot, as a matter of right, have the responsive testimony striken out on motion, though it may be irrelevant or incompetent, and open to attack by proper objection. Wilson v. Jernigan, 57 Fla. 277, 49 So. 44; Platt v. Rowand, 54 Fla. 237, 45 So. 32.

If testimony is given in response to direct questions of a party, the adverse party should object to the questions as propounded and not wait until all of the testimony is in, and then move to strike it. See Stowers Furniture Co. v. Brake, 158 Ala. 639, 48 So. 89; Rutledge v. Rowland, 161 Ala. 114, 49 So. 461; Kramer v. Compton, 166 Ala. 216, 52 So. 351; Wilson v. Jernigan, 57 Fla. 277, 49 So. 44; Pittsburg Steel Co. v. Streety, 61 Fla. 393, 55 So. 67.

'Under the common law rules rendering incompetent an interested witness his competency was required to be challenged as soon as it became apparent that he was interested, by a motion to strike out, and it was held too late to make the motion after he had been cross examined, and the same rule is...