Cleary Bros. Construction Co. v. Phelps ( 1945 )

Some features of the petition for rehearing seem to warrant elaboration of our original opinion.

The appellant insists that we overlooked the fact that it is customary "in the Eleventh Judicial Circuit to accept as the official Court reporter, any reporter produced by either side, provided no objection is made by the Court or opposing counsel." This, assuming the premise to be sound, was not overlooked, for there was no showing in the record of such custom, though an attempt is now made to introduce it by affidavits attached to the petition for rehearing. Nor was reversal urged on that theory.

Three questions were argued in the brief. The third dealt with the propriety of a ruling sustaining a demurrer to a plea. We thought it required no comment. The second involved the justness of the amount of the verdict upon which we remarked briefly. Pertinent parts of the first question follow:

"Where the court reporter has lost the stenographic notes of the proceedings of the trial . . . and where said loss was through no fault of the defendant or its counsel, and where it is impossible to obtain a record of the proceedings . . . should the court grant a motion for new trial?"

The argument of the last question was introduced with reference to the affidavits which we digested in the original opinion. Then were cited fourteen cases, all of which we mentioned, all of which we examined except James v. French, 5 Pa. C. 270, a decision not available. Our perusal of these opinions and applicable statutes led us to the conclusion that the circuit judge could not be said to have erred when he denied the motion for new trial and entered judgment.

Heretofore we have referred to the motion for new trial without giving its contents in detail. It seems now fitting to do so. The trial had been held 15 December 1944, and the motion filed 2 January 1945. It consisted of eleven grounds, five challenging the instructions to the jury, two, the arguments of opposing counsel; one, the amount of the verdict; one, the failure of the jury to "consume sufficient time in the consideration of their verdict." The remaining two stated the verdict to have been contrary to the law and the evidence. It was 2 May 1945, four months later, that there was filed a "motion in connection with [the] motion for new trial," bearing the first allusion to the mislaid stenographic notes, although from these affidavits it appears that the stenographer had reported the loss the 26th or 27th of December, even before the original motion for new trial was filed.

It might be seriously questioned, in view of the ruling in Walker Fertilizer Company v. Cole, 144 Fla. 37, 197 So. 777, whether this question of loss of the notes was ever properly entertainable by the court as a ground for new trial inasmuch as it was new matter attempted to be introduced long after expiration of the time for filing a motion for a new trial; however, we decided the controversy on the question we have quoted, which was argued in the briefs by counsel for both parties litigant.

We did not, as suggested in the petition for rehearing, criticize in the opinion the employment of private stenographers to report the proceedings at trials. We see now no objection to such a course. We know of no requirement that the proceedings at a trial be taken by a regular or special court reporter or, so far as that is concerned, that they be taken at all. We can think of no reason why anyone in a private capacity may not take in shorthand such proceedings or why his transcription may not be used in making a record for appeal, depending on the confidence the trial judge has in the efficiency of the stenographer and the accuracy of the transcription. The question here presented is quite another matter. It does not deal with the propriety of such procedure, but with a situation where the notes taken by one so chosen become mislaid. We simply held that in such eventuality the loss was not imputable to the opposing party because he had no part in the employment, or the loss; also that mere establishment of the loss would not suffice as a ground for new trial inasmuch as the cause could not be traced to a court official.

A litigant faced with the difficulty of making up the record without advantage of stenographic notes might forcefully argue that his plight was due to the negligence or carelessness of a court official, but his position is entirely different when his predicament is attributable to the carelessness of someone with no official standing who has been selected by him or his counsel.

After all, the presumption is that the trial court ruled correctly. He said in his order that he had "heard all the testimony . . . and fully charged the Jury according to law"; that the "Motion for New Trial . . . [had] been fully orally argued . . . by counsel for both sides"; that they had exhaustively briefed [the] case"; that the "briefs [had] been read and studied by the Court"; that the "Court [had] made additional study of applicable law"; that he felt "the parties [had] had a fair and impartial trial"; that he believed "to grant a new trial would invade plaintiffs right to a trial by jury of her cause." He then recited the report to him of the accidental, inadvertent, and permanent loss of the notes which he thought could not be charged "to either party or either attorney in said case."

It seemed to us at the time we prepared the original opinion and it seems to us now that it would be unjust to place upon the successful litigant and her counsel the burden and inconvenience of a second trial because of the loss of the notes by one with whose selection they had no part, with whom they had no relation and who herself had no official standing. Moreover, the very judge who tried the case and who was thoroughly familiar with it, as well as the subsequent loss of notes, entered the judgment notwithstanding. The presumption is that his action was correct, and this presumption certainly cannot be overcome by merely showing the circumstance that a transcribed record of the trial is not available and the assumption that, if available, error would appear.

It is said in the petition for rehearing that in referring to Chapter 59, Florida Statutes, 1941, and F.S.A. and stating that no effort had been made to settle the bill of exceptions we overlooked our Rule 11, Section 3, abolishing bills of exceptions. We were not called upon to decide in this case the effect of the rule upon the statute, and the statement was only made apropos the question whether appellant had been diligent in making up a record despite the disappearance of the notes.

The first sentence of the rule is: "For appellate purposes bills of exception and the formal authentication thereof by the trial judge as now required are hereby abolished." The language immediately following clearly shows its purpose, namely, to prevent duplication of work and to effect a saving to litigants. It provides that "when any proceedings . . . have been stenographically reported, within the time for filingdirections by appellant, the court reporter shall certify a copy of his transcribed notes to the clerk . . . The . . . clerk shall not be required to verify nor shall he make a charge for any stenographic copy furnished and certified by acourt reporter when physically incorporated in the transcript." We have supplied the italics.

Obviously the purpose of this rule is to place the reporter's certified transcript directly in the record without additional cost in the form of fees to the Clerk.

What we have written about this section of the rule is merely introductory to the point directly involved in this case. What follows, taken from the other sections of the rule, bears directly on the point in controversy. It is provided that the testimony included in the record "may be in question and answer or narrative form or both" and when in narrative or abstract form, the party so directing shall prepare and file with his directions a condensed statement in narrative or abstract form of such testimony." It will be noted that in both sections there is reference to "directions." In the following sections procedure is outlined for presenting and considering objections to narratives filed with the "directions" and for stipulations as to the part of the record to be transmitted to the appellate court.

This question immediately presents itself: "Does the rule deal with cases where no notes have been taken?" If it does, there is no showing here of an effort to file a narrative with the directions. If it does not, and we resort to Chapter 59 for information of the manner of presenting proceedings at the trial (bill of exceptions) where there are no notes, we find, as we said in the original opinion, that nothing was done to comply with it.

We have said we knew of no requirement that stenographic notes of a trial be taken. If they are not, and the appellate court is to be apprised of these proceedings, there must be some attempt to bring such record here. The appellant made no such effort.

We reach now the statement in the petition that in the original opinion we criticized counsel for the selection of a "non-official Court reporter." No such criticism was intended, and upon scrutiny of the opinion in the light of the petition we can find none. Again we say we know of no irregularity even, in such a course, but we reiterate that where it is followed and the employee loses the notes the misfortune cannot be visited on an adversary. See Morin v. Claflin, 100 Me. 271,61 A. 782.

It is then represented that we "overlooked the fact that in truth and fact, the Court reporter was a full time employee of counsel for the plaintiff and that it was while she was employed by plaintiff's counsel that the notes disappeared." It is correct that the stenographer was the employee of one of counsel for the plaintiff and that this relationship existed when her notes were lost. If we resort to appellant's affidavit we find, however, that when she was employed by appellant, or its counsel, the attorney for whom she worked was not connected with the case. The statement from one of the affidavits follows: ". . . at the time arrangements were made to obtain the services of the court reporter, the plaintiff [appellee]was not represented by local counsel in Key West, Florida, [place of the trial] and the said court stenographer was, and is, employed as a secretary by William V. Albury, Esquire, an attorney in Key West; that on the morning the case was calledfor trial, Mr. Albury appeared as counsel for the plaintiff and, for the first time deponent was aware of the fact that Mr. Albury had been retained by the plaintiff; that upon information and belief, Mr. Albury was retained on the night of December 14, 1944." (Italics furnished.) To clarify this statement we repeat that the trial was held 15 December 1944.

Not only was there no criticism of counsel for appellant, but also there was no reflection upon either of them. Their good standing at this court is recognized. The fact that one of them called his associate in Key West to arrange for a stenographer and that such request was complied with seems to us quite regular. The fact that they were deprived of the transcript by some untoward event reflects no discredit on any of them. We reach by every avenue we have traveled the same conclusion — that the loss is to be suffered by appellant, not by appellee.

Petition denied.

CHAPMAN, C. J., TERRELL, BUFORD, ADAMS and SEBRING, JJ., concur.

BROWN, J. dissents.