Walker Fertilizer Co. v. Cole ( 1940 )

The plaintiff in error, as plaintiff in the circuit court, recovered by a verdict against the defendants for the wrongful death of Willie Walker at the conclusion of a trial of issues formed by the second count of the declaration and defendants' three pleas.

Substance of the initial pleading was that Walker, while employed by the fertilizer company, received injuries because of the careless operation of an automobile, owned by Mary E. Cole and driven by her husband, which struck the rear end of the company's truck, as it was parked on a highway, forcing the truck over Walker, who stood in its path. It was alleged that the widow of the victim received compensation under the Workmen's Compensation Act and that the action was authorized under that law.

There were two pleas of contributory negligence and one of not guilty.

Under the first plea there was a denial of the wrongful act and not of statements in the inducement and no other defense was introducible under it. Johnson v. Florida Brewing Co.,90 Fla. 148, 105 South. Rep. 319 (Rule 32).

Within the time allotted for the purpose the defendants filed their motion for new trial, which contained the usual formal grounds and others referring to certain charges given to the jury. About forty-five days after the rendition of the verdict they sought permission of the court to amend the motion for new trial in a verified petition, substantiated by affidavits, setting forth that it had been learned since the trial that the widow of Willie Walker had a living husband to whom she was married before her union with Walker and from whom she had not been divorced. The amendment was filed.

Again, seventy days after the verdict, another petition was presented asking leave to amend further the motion for new trial because of newly discovered evidence.

After the last application was lodged the judge rendered his order allowing the amendments to be filed, setting aside the verdict, vacating the judgment which had been entered and granting a new trial.

Reasons given for allowing the new trial were that the verdict was "contrary to the law and * * * evidence" and that the "plaintiff * * * was not the lawful wife of * * * Willie Walker * * *."

The record reveals that there was a sharp conflict in the testimony of those persons who supported the plaintiff's theory of the case and the story of defendants' witnesses, however, there was sufficient basis for the jury's conclusion favoring a recovery. We have found no reason for up-setting the judgment because of its clashing with any particular principle of law ruled on by the court up to the time the amendments were offered to the motion for new trial and so our observations will be confined to them, especially in view of the recital in the court's order referring to the marital status of the so-called "use plaintiff."

It will be recalled that this aspect of the case was injected after the time had elapsed for filing the motion for a new trial. It cannot be gainsaid that newly discovered evidence may be a reason for granting a retrial although it must fall within certain bounds enumerated in Dixon v. State, 77 Fla. 143,80 South. Rep. 741, one of them being that such evidence must be relevant to an issue in the case.

We think the court should assume a generous attitude in allowing amendments so that the true facts bay be bared and a just decision reached, but tile real question here is whether that generosity was extended too far by the learned trial judge. In other words, should an amendment to a motion for new trial be allowed when the time has expired to file an original motion and the newly discovered evidence is irrelevant to the grounds already given and can shed no light on the dispute unless a new issue is formed by additional pleadings?

We incline to the view adopted in other jurisdictions that an amendment after expiration of the time for the original motion should be relevant to the grounds already presented and that the discretion given the trial court to allow amendments should not be expanded to permit inclusion in the proposed supplementary motion of new and different bases for another trial (Sorsby v. Wilkerson, 206 Ala. 190, 89 South. Rep. 657; Reed v. Incorporated Town of Wellsburg, 179 Iowa 593,161 N.W. Rep. 660) as was attempted in this case by introduction of the question whether the so-called use plaintiff was or was not the lawful wife of the accident victim, an issue neither raised by the plea of not guilty nor offered by the affirmative pleas of contributory negligence. See Mundee v. Freeman, 23 Fla. 529,3 So. 153.

We, therefore, decide that grounds independent of those already stated cannot be incorporated in the motion under the guise of an amendment, (Rogers v. Quabner, 41 Okla. 107,137 Pac. Rep. 361) after the time for tiling the original motion has expired and, further, that a new issue cannot be so injected and the testimony relevant to it consequently relied upon as newly discovered. McLear v. Balmat, 129 Misc. Rep. 805,223 N.Y. S. 76, Walker v. Garland (Tex.Civ.App.),220 S.W. Rep. 399. Such a conclusion is in harmony with Dixon v. State,supra.

Consideration of the controverted points of the litigation has been almost entirely devoted to the matter of the domestic status of the plaintiff Rosa Walker, and we have given scant attention herein to other testimony referred to as newly discovered because it appeared on examination of the record to be duly cumulative.

We think it would not be amiss to remark upon the excellent manner in which counsel for both parties have presented this case. A record of nearly six hundred pages was compressed to briefs aggregating ninety pages in which appeared on the part of each litigant a comprehensive summary of the evidence and digest of the law. The clear and concise treatment of fact and law has greatly facilitated our study of the controversy and decision of the question presented.

The order granting motion for new trial is reversed with directions to enter a judgment to conform to the verdict rendered by the jury, unless a motion in arrest of judgment, or for judgment non obstante veredicto, shall be made to prevail.

So ordered.

TERRELL, C. J., WHITFIELD and CHAPMAN, J. J., concur.

BUFORD, J., dissents.

Justice BROWN not participating as authorized by Section 4687, Compiled General Laws of 1927, and Rule 21-A of the Rules of this Court.