82 Fla. 27 | Fla. | 1921
In the declaration of an action to recover damages from the corporation for the death of her
Trial was had on the pleas numbered 1, 4 and 5, which are as follows: (1) Not guilty. (4) That the deceased, Arthur Howard, had, prior to the time of the accident, ample opportunity to examine the pieces of timber used as skids upon which the boiler in the declaration mentioned was being moved, and that prior to the time of the accident he had actually used or assisted in making use of said pieces of timber in the supporting and moving of the boiler; that he had had previous experience in the same kind and character of work and was a man of sufficient age, experience and capacity to understand and appreciate the methods employed and the danger thereof, and that he continued without protest to do the said work and to use the said pieces of timber, wherefore he assumed the risk of his employment. (5) That the injuries sustained by the deceased Arthur Howard were proximately contributed to by his own negligence in this, to-wit., that he was the head, or boss, or leader of the gang of men engaged in the actual moving of the boiler in the declaration mentioned, and that he had the opportunity to, and the tools and appliances wherewith to block up or support the skids or pieces of timber upon which the boiler was being moved or- rolled from the dock to the lighter or barge, and that he negligently failed to adequately block up or support the said skids or pieces of timber before the weight of the boiler was transferred thereto.
There were verdict and judgment for the defendant rendered May 27, 1920.
The court adjourned for the term on November 12, 1920.
On January 5, 1921, after the adjournment of the court for the term, the defendant filed a motion to vacate the order granting a new trial, the grounds of the motion being: “ (1) The motion for new trial was not filed within four (4) days after the rendition of the verdict herein. "(2) The motion for new trial was not filed within the time allowed by law. (3) The motion for new trial is and was from its inception utterly void and a mere nullity, and formed no proper basis or predicate for the order of court granting the same. (4) There wag no valid order extending the time for making and presenting the said motion for n'ew trial. (5) The order of court made and entered
MARKS, MARKS & HOLT',
Attorneys for Defendant.
State of Florida, County of Duval.} SS.
Before me this day personally appeared Francis M. Holt, who, having first been.duly sworn, deposes and says that he is a member of the law firm of Marks, Marks & Holt, attorneys of record for .the defendant herein, and that he has had personal charge of the cause above styled during the pendency of the suit. Affiant further says that after
This affiant further says that no copy of the motion for new trial filed herein has ever been served upon the defendant or upon its attorneys.
FRANCIS M. HOLT.
This motion to vacate was denied, an exception for the defendant was noted and the defendant took writ of error to the order granting a new trial as is permitted by the statute.
Errors are assigned as follows:
“1. The Court erred in making and entering its order of May 29,1920, extending the time for the filing by the plaintiff of her motion for new trial, because there was no proper predicate for the making of such order.
‘ ‘ 2. The Court erred in considering the plaintiff’s motion for new trial, because it was not made within the time prescribed by law.
‘ ‘ 3. The Court erred in considering the plaintiff’s motion for new trial, because it was an absolute nullity.
‘ ‘ 5. The Court erred in denying the motion made by the defendant, wherein it was sought to have the order of court granting the plaintiff’s motion for new trial, vacated and declared to be of no effect. ’ ’
The statute provides that: “Motions for new trials in civil cases shall be made within four days after the rendition of the verdict and during the same term, but the judge upon cause shown may within such four days and during the same term by order extend the time for the making and presentation of such motions, not to exceed fifteen days from the rendition of the verdict. In all cases of extension of the time for making such motions, a copy of the motion to be presented to the judge shall be served on the opposite party, or his attorney, with three days’ notice of the time and place that the same will be presented and heard.
“It shall not be necessary to incorporate in any motion for a new trial any matter in pais previously excepted to, for the purpose of having the same reviewed by an appellate court. The provisions of this section shall not apply to criminal causes.” Sec. 2811 Rev. Gen. Stats. 1920.
It is argued that as the statutory notice’ was not given, .the order extending the time for making a motion for new trial was unauthorized and as the motion for new trial was not filed within four days after the rendition of the verdict, the motion and order for new trial should have been stricken from the record on the defendant’s motion made after the adjournment of the court for the term.
The statute does provide that- ‘ tin all cases of extension of time for making such motions (for new trials in civil
The only question now is, whether error was committed in granting a new trial. Carney v. Stringfellow, 73 Fla. 700, 74 South. Rep. 866.
While it cannot fairly be said that the verdict for the defendant is contrary to the overwhelming weight of the evidence as asserted in the grounds of the plaintiff’s motion for new trial, the evidence on essential points involved in the issues being tried is conflicting, and it does not clearly appear that the granting of a new trial was an abuse of discretion. Cheney v. Roberts, 77 Fla. 324, 81 South. Rep. 475; Carney v. Stringfellow, supra; Ruff v. Georgia S. & F. R. Co., 67 Fla. 224, 64 South. Rep. 782; Orchard v. Charlotte Harbor & N. R. Co., 66 Fla. 353, 63 South. Rep. 717; Clary v. Isom, 55 Fla. 384, 45 South. Rep. 994; Farrell v. Solary, 43 Fla. 124, 31 South. Rep. 283.
This case is essentially different from Jackson Bros. Lumber Co. v. Yaeger & McGaskill, 80 Fla. 611, 86 South. Rep. 500, and Cotton States Belting & Supply Co. v. Florida R. Co., 69 Fla. 52, 67 South. Rep. 568, and other
Affirmed.