Romano v. Palazzo, 83 Fla. 243

83 Fla. 243 | Fla. | 1922

Ellis/ J.

George 'Palazzo' brought an action ágainst S. A. Romano in the Circuit Court for Franklin County for board for .a number .of years commencing in 1913.. • •

The declaration contains seven counts as follows: For money payable by the defendant to the plaintiff for goods bargained and sold by the plaintiff to the defendant; second, for work done and materials furnished; third, for money lent; fourth, -for money paid by the plaintiff for the defendant at his request; fifth, for money received by the defendant for the use of the plaintiff; sixth, account stated, and seventh for board and lodging furnished the defendant and his dog from the first of January, 1913, to and including the first of January, 1919, less a sum of money which the plaintiff admits that the defendant had paid on account amounting to $1,308:56.

The defendant pleaded that he never was indebted; second, payment, and third, that the plaintiff was indebted to the defendant at the time of the institution of the suit in the sum of about $1,927.00 which he was willing to set off against the plaintiff’s claim.

There was a verdict for the plaintiff in the sum of $500.00, and judgment Was entered accordingly for the plaintiff. The defendant seeks to reverse that-judgment upon writ of error. ' •'

During the .trial of the cause the witnesses were placed under the rule. . After the plaintiff rested his ease the defendant .called as a witness, Antonio Cisceroni. The plaintiff objected to this witness testifying upon the ground that he had not been excluded from the court room under the rule and'there was ho exception made in his favor. This objection was sustained and.the witness was not permitted to testify. That transaction wás made the basis of the first Assignment of error. - "

No proffer was made of the evidence sought to. be introduced through this witness. There was nothing to'show whether the proposed testimony of the witness was material, nor whether it was or not merely cumulative, nor whether he was competent to testify as to the matters sought to be introduced in evidence through him.

The matter of excluding witnesses from the court room during the trial of a cause is one within the discretion of the trial court and whether a witness shall be excluded from the rule or whether one who has not been placed under the rule but who nevertheless has remained in the court room during the taking of testimony, as was true in the case of Antonio Cisceroni, shall be permitted to testify notwithstanding the rule are all matters within the discretion of the trial court and will not be interfered with by an appellate court unless it has been made clearly to appear that the trial court has abused its discretion to the injury of the complaining party. There is nothing in the record to show that the action of the court in excluding the testimony of the witness resulted in any harm to the defendant. The presumption is in favor of the correctness of the court’s ruling and reasonable exercise of discretionary power and the burden is upon plaintiff in error to make the alleged error in the court’s ruling affirmatively to appear. See Seaboard Air Line Ry. v. Smith, 53 Fla. 375, 43 South. Rep. 235; Falk v. Kimmerle, 57 Fla. 70, 49 South. Rep. 504; Morrasso v. State, 74 Fla. 269, 76 South. Rep. 777.

The method of conducting trials, the introduction of evidence, and the order in which witnesses may be called are matters which are left to the reasonable discretion of the trial court and every presumption is in favor of the correctness of such ruling. Hughes v. State, 61 Fla. 32, 55 South. Rep. 463.

In tbe plea of set-off tbe defendant averred that be had paid to tbe Spano Rotundo Company for tbe plaintiff at tbe latter’s request tbe sum of $228.15.

Tbe defendant testified in bis own behalf that be bad boarded with tbe plaintiff for tbe time alleged and caused bis dog also to be fed at tbe same place and that be paid for tbe plaintiff to tbe Spano Rotundo Company the sum of $228.15, which be said was for supplies furnished by that company to tbe plaintiff and tbe account was charged to tbe defendant. Tbe court charged tbe jury in regard to that claim in tbe defendant’s plea of set-off that if tbe defendant paid that amount for tbe plaintiff the burden was upon the defendant to prove that tbe amount paid by him to tbe Spano Rotundo Company was at tbe plaintiff’s request and that the jury should determine from “tbe evidence in this case whether or not it has been proven that any such valid charge existed.” Counsel for plaintiff in error contends that tbe charge is vague and uncertain in its meaning and is misleading. That it was error to'instruct tbe jury that tbe indebtedness to tbe Spano Rotundo Company bad to be shown to be a valid, existing debt, which tbe counsel for plaintiff in error contends is tbe meaning of tbe phrase “that any such valid charge existed” as used in the instruction. Counsel for plaintiff in error urges that if tbe defendant paid tbe amount at tbe plaintiff’s request it was a proper subject of set-off regardless of whether there was a valid charge or indebtedness against tbe plaintiff for such amount and that position is undoubtedly correct but tbe proposition does not quite fit tbe evidence, although it is appropriate to tbe plea.

Tbe plea avers that the defendant paid tbe money to tbe Spano Rotundo Company for the plaintiff at his request. He testified, however, that the transaction, was of a little different character and not a mere matter of paying a specific sum to a third person at the plaintiff’s request. The defendant testified that there was an understanding between him, the Spano Eotundo Company and the plaintiff that the latter should get supplies from the company, that the Company would charge the items to the defendant and the defendant would‘board it out with the plaintiff, therefore it became very necessary to support the plea of set-off for the defendant, to show that whatever sum he paid to the Company was on account of a valid obligation of the plaintiff’s and pursuant to the arrangement mentioned. There was no error in that charge.

It appeared in evidence that the plaintiff and the defendant agreed that board should be charged the defendant at the rate of $21.00 per month. It also appeared that the plaintiff, at one time when the prices of commodities were increasing rapidly, told the defendant that he would have to increase the charges for the latter’s board.

The defendant requested the court to charge the jury that if the defendant and the plaintiff agreed that the latter should board the former at the rate of $21.00 per month that the plaintiff could not change the contract without the consent of the defendant or without notice to him. That charge was given but the court added thereto the following, that if the plaintiff notified the defendant that the latter’s board would be increased from the amount previously agreed upon, if such agreement was made and the defendant without expressly consenting thereto, or without protest continued to board with the plaintiff that the plaintiff would be entitled to recover for the increased price from the date of the notice to the defendant. It is contended by counsel for plaintiff in error that the last part of the instruction was inapplicable to the evidence because it no where appeared in the evidence that the plaintiff ever notified the defendant of the intention to increase the rate of board. That criticism is not justified by the record. The plaintiff testified that the defendant boarded with him from January 1, 1913, until the year 1920. That the defendant caused his dog to be fed at the plaintiff’s place during that period of time until the dog died and from time to time took guests with him to eat at the same place, that the monthly charges against the defendant ranged from $21.00 to $33.00 and that after August of 1917 the plaintiff charged the defendant $30.00 a month for board explaining to the defendant at the time that the reason for it was the high prices of everything, and that the defendant made no objection.

In view of that evidence we think the charge was applicable and there was no error in it.

The other assignments of error raise the question of the sufficiency of the evidence to support the verdict. In the first place it is contended that the verdict includes an allowance for the board of the defendant’s dog and there was no evidence that any agreement had been made between the plaintiff and the defendant as to the amount to be charged for keeping the former’s dog. There was evidence in the record that the amount charged was only $2.00 per month and that was a reasonable price, that the defendant had asked the plaintiff to take care of the animal and the defendant, himself, had fed it scraps of food from the table. It is further contended that the evidence was so uncertain, the language of the witnesses so involved and the figures presented being a mere inextricable mass of tangled numbers that it would be impossible for any body to unravel them and arrive at a conclusion as to the difference between the parties with any degree of certainty.

There is ample evidence to support the verdict for $500.00 which the jury found to be due from the defendant to the plaintiff, indeed if the verdict had been for a larger sum it is doubtful if it would have been obnoxious to the criticism that it was excessive. ¥e are not concerned with the process of reasoning which the jury adopted to arrive at the conclusion reached, nor is it proper to question the propriety of their verdict so far as the credibility of witnesses is concerned. Thei’e may have been items found in the defendant’s bill of particulars forming the basis of his plea ■ of set-off which the jury did not consider sufficiently established to allow, but that many of the items were allowed is evident from the verdict rendered.

It has not been made to appear that there was any error in the verdict and therefore there appears to be no error in the order over-ruling a motion for a new trial upon the ground that the verdict was not sustained by the evidence.

No error having been made to appear in the record the judgment is hereby affirmed.

Browne, C. J., and. Taylor, Whitfield and West, J. J., concur.