GULF HEATING AND REFRIGERATION COMPANY, Inc., a Florida Corporation, Petitioner, v. IOWA MUTUAL INSURANCE COMPANY, an Iowa Corporation, Respondent.
No. 35471.
Supreme Court of Florida.
November 23, 1966.
Rehearing Denied January 12, 1967.
193 So. 2d 4
DREW, Justice.
Masterson, Lloyd, Sundberg & Rogers, St. Petersburg, and Horton & Schwartz, Miami, for petitioner.
Robert F. Nunez, St. Petersburg, for respondent.
DREW, Justice.
Petitioner in this certiorari proceeding controverts a decision of the district court reversing a judgment for petitioner, the plaintiff in an action for wrongful garnishment.
Upon a review of plaintiff‘s evidence the district court held that “the lower court erred in failing to grant Defendant‘s motion for directed verdict upon the conclusion of evidence submitted by Plaintiff and again upon the conclusion of all of the evidence.”1 In view of the limited record before the appellate court, containing only plaintiff‘s evidence, we think the quoted ruling must be construed as one simply finding error in the denial of defendant‘s motion for directed verdict at the close of plaintiff‘s evidence.2 To the extent that the language might indicate a decision of greater breadth, i.e. a finding of error in the failure to grant a directed verdict upon consideration of all the evidence, the appellate record was obviously insufficient to permit such a determination.3
Certiorari in this Court is based on conflict between this decision, reversing a judgment entered on a jury verdict and directing that defendant‘s motion for directed verdict be granted upon appellate consideration of plaintiff‘s evidence alone,
“Insofar as appellate review of the sufficiency of the evidence under an assignment of error directed to the trial judge‘s ruling upon the defendant‘s motion is concerned, it is clear that in the situations hypothesized in the preceding paragraphs the trial judge‘s ruling would be based on a consideration of all the evidence adduced in the cause, so that the question of the sufficiency of the evidence could properly be considered by the appellate court on an assignment of error directed to the trial judge‘s ruling thereon. Cf. United States v. 353 Cases, etc., 8 Cir., 1957, 247 F.2d 473.”5
Upon a thorough study of the authorities referred to in the Millen opinion the conclusion is inescapable that under the federal doctrine of waiver there approved6 a defendant, by proceeding with the presentation of his evidence, waives any error in denial of his initial motion, and that the court‘s ruling on the renewed motion required at the close of the case must be, as above stated, “based on a consideration of all the evidence adduced in the cause.”7
The appellate issue must accordingly be resolved by review of the defendant‘s as well as plaintiff‘s evidence. This disposition of the point is in accord with earlier decisions indicating that error in denying directed verdict on plaintiff‘s evidence may be cured by subsequent testimony.8 The burden of framing proper appellate issues or correcting record omissions in the instant case did not, in our opinion, devolve upon the petitioner, appellee below. Florida Appellate Rule 3.6(d) (2), 31 F.S.A. Whatever may have been the breadth or deficiencies of appellee‘s contest of the appeal, such cannot logically serve to bolster the reversal in this case.
The decision below, upon the limited record and error assigned, is quashed with directions that the judgment of the trial court be affirmed.
It is so ordered.
THOMAS, ROBERTS and O‘CONNELL, JJ., concur.
THORNAL, C.J., dissents with opinion.
THORNAL, Chief Justice (dissenting):
There is no jurisdictional conflict.