Tolliver v. Loftin , 155 Fla. 698 ( 1945 )

PER CURIAM:

Twice during the trial of the suit for personal injuries— at the close of appellant’s testimony and at the end of all the testimony — the defenants" moved for an instructed verdict. The judge denied both motions. The jury returned a verdict for the plaintiff, and judgment was entered accordingly. The defendants then filed a motion for a new trial, and the judge, after considering it, but without making any ruling upon it, entered a contrary judgment — for the defendants. His action was in effect, and resembled somewhat, a judgment notwithstanding the verdict, but cannot be upheld as such because a motion for a judgment non obstante veredicto is available only to a plaintiff and should be made before the entry of judgment; also it must be based on matters appearing on the face of the record, an essential element not present here because the trial judge obviously based his conclusion on the testimony.

All members of the court agree that the judgment should be reversed. Mr. Chief Justice CHAPMAN and Mr. Justice BUFORD are of the opinion that the trial court should be directed to reinstate the first judgment. It is the view of the majority of the court that the trial judge should be directed to rule on the motion for a new trial. Although the trial judge twice overruled motions for a directed verdict he ultimately concluded, as is apparent from his opinion in the case and his entry of the last judgment, that the plaintiff should not have prevailed on the evidence. This indicates that he would not allow the first judgment to stand when tested by the motion for new trial. A majority of the court are reluctant to circumscribe the discretion that a trial court may exercise in granting a motion for a new trial. If he is directed, in this case, to reinstate the first judgment he will not be given the opportunity of ruling on the motion despite his attitude, clearly reflected in the record, that he considers the verdict unjust.

It is, therefore, the order that the last judgment entered be set aside with directions to determine the motion for new trial.

Reversed.

CHAPMAN, C. J., TERRELL, BROWN, BUFORD, THOMAS and SEBRING, JJ., concur. ADAMS, J., concurs specially.