Wilson v. O'Neal, B-6

• Decision Date: 09 February 1960
• Docket Number: No. B-6,B-6
• Citation: 118 So.2d 101
• Parties: Carl WILSON, Appellant, v. Truby O'NEAL, Appellee.
• Court: Florida District Court of Appeals

Page 101

118 So.2d 101

Carl WILSON, Appellant, v. Truby O'NEAL, Appellee.

No. B-6.

District Court of Appeal of Florida, First District.

Feb. 9, 1960.

Rehearing Denied March 2, 1960.

Edward H. Robinson, Jacksonville, and Sam Pasco, Tallahassee, for appellant.

J. B. Hodges, A. K. Black, Lake City, and John H. McCormick, White Springs, for appellee for appellee.

The defendant has appealed from a judgment against him entered by the Circuit Court for Columbia County in the amount of $5,000 plus costs and also from orders of the court taxing costs and denying his motions for a new trial and for a judgment non obstante veredicto.

The first count of the second amended complaint, on which the case was tried, alleged in substance that the defendant was employed by the State Beverage Department of Florida; that on February 16, 1955, the defendant made an affidavit before the Honorable R. H. Rowe, a Circuit Judge, in the County Judge's Court of Columbia County stating that three days before the plaintiff sold and delivered to the defendant a pint of a beverage containing more than 1% of alcohol by weight and at said time the plaintiff did not hold a license from the State of Florida permitting the said sale; that pursuant to the said affidavit, a warrant was issued and served upon the plaintiff by the Sheriff of Columbia County, whereupon it became necessary for the plaintiff to post bond in the amount of $150 and retain the services of his attorney to defend him against the charges; that on March 14, 1955, when the case was called for trial, the plaintiff was present with his attorney before the County Judge of Columbia County, whereupon the defendant admitted that the plaintiff was not the person intended to be prosecuted but was in truth the wrong person, and the County Judge then caused the plaintiff to be released from custody and fully discharged of the supposed offense, the case being non-prossed upon motion of the State; that the defendant was guilty of the negligence alleged in paragraph 5 quoted below; that as a result thereof the plaintiff suffered divers damages, including humiliation, embarrassment, anxiety of body and mind, losses in his business, and damage to his credit, circumstances, and reputation in the community.

Paragraph 5 of the count charged the following as constituting the negligence of the defendant:

'By reason whereof, the plaintiff charges that the defendant, Carl Wilson, having accused plaintiff, causing him to be brought to trial as aforesaid, thereby carelessly and negligently performed his duties as an employee of the State Beverage Department of Florida, and failed to perform faithfully his duties by virtue of his position of employment as aforesaid, in that he failed to make due inquiry to determine the identity of the person intended to be prosecuted.'

The trial court denied the defendant's motion to dismiss the first count, but granted the motion as to a second count, which had claimed punitive damages because the defendant 'so grossly negligently and carelessly failed to make due inquiry of the person intended to be prosecuted * * *.'

In his answer to the first count the defendant-appellant included as his fifth defense his denial of the negligence alleged in paragraph 5 of the count and also included the following allegation:

'In answer to said paragraph (5) of said complaint defendant alleges that on February 13, 1955 he purchased one pint of alcoholic beverage containing more than 1% alcohol by weight, from a taxi driver in Lake City, Columbia County, Florida, in the proper performance of his duties as an employee of the State Beverage Department of Florida, that he had no knowledge of the identity of said taxi driver, that he made due inquiry from a reputable citizen of Lake City, Florida, of the name of said taxi driver, giving the number of the cab and a full description of the driver including his manner of speaking that the said reputable citizen thereupon informed the defendant that said driver was the plaintiff, and that the defendant acting on said information, with no malice toward the plaintiff, made the affidavit described in paragraph (2) of said complaint in the proper performance of the duties of his said employment.'

This quoted language was later stricken by the trial court on motion of the plaintiff. In his answer the defendant also denied the damages alleged in the first count.

The overriding question in both the trial court and this court is whether any cause of action has been alleged and proved in this case. This is a difficult question to answer because, as the trial court pointed out, this seems to be a case of first impression in Florida, at least so far as the plaintiff's theory of recovery is concerned. Apparently the trial court sustained the cause of action on the following theory, as stated in one of the orders appealed from, denying the defendant's motion for a new trial:

'So far as the Court is concerned, this case, foundationed as it was, is a case of first impression, for the Court has been unable to find any appellate expression on an identical question of this kind in our State, but we do have the guarantee of the Bill of Rights that 'For every wrong, there is a remedy.''

While the ideal of 'no wrong without a remedy' is widely regarded as a correct principle in this country, no support for it can be found in our jurisprudence as a universal rule. As Mr. Justice Terrell, speaking for the Supreme Court of Florida, said in Holland v. Mayes, 1944, 155 Fla. 129, 19 So.2d 709, 711:

'When we commenced the study of law, we were early confronted with the maxim; For every wrong there is a remedy. Section Four of our Declaration of...