Cleary Bros. Construction Co. v. Phelps

A suit was brought in Monroe County by appellee, a widow, to recover from appellant damages for the loss of her husband, and eventually the cause reached an issue and was tried, resulting in a verdict for $35,000.

No bill of exceptions is brought here, for reasons appearing in affidavits presented to the court at the time the motion for a new trial was argued. From these, executed by Mr. H. Reid DeJarnette, Judge Raymond R. Lord, and Miss Ruth Thompson, the following situation is unfolded: Mr. DeJarnette, in behalf of his firm, conducted defendant's case both during settlement of the pleadings and the trial of the issues before the jury. As the time for the trial approached he associated Judge Lord and Mr. Allan B. Cleare, of Key West, to assist him. The Key West attorneys were requested to arrange for the services of a "court reporter," and they employed Miss Ruth Thompson, who took shorthand notes of the proceedings. The day after the verdict was rendered all attorneys for the defendant conferred in Key West in preparation for the presentation of a motion for new trial. It seemed imperative to have a transcription of the notes; so Miss Thompson was reached on the telephone and requested to furnish it immediately. She agreed to begin the task that very day. Three days later Mr. DeJarnette telephoned Judge Lord and urged him to speed the work. A week passed, and again Judge Lord was called and told that the record should be completed by the following day, that being the last day notice could be given of the hearing on the motion for new trial. Judge Lord gave the assurance that the transcript would be in the mail that afternoon, but on the following morning he advised Mr. DeJarnette that he had been informed by the stenographer that her notes had been lost. It appears from one of the affidavits that the stenographer was the secretary of William V. Albury, an attorney in Key West, who on the morning the trial began appeared as counsel assisting attorneys for the plaintiff.

The first question posed by appellant challenges the propriety of the order denying the motion for new trial where (1) the stenographic notes of the proceedings of the trial were lost, (2) the loss was occasioned "through no fault of the defendant or its counsel," (3) it was impossible to secure a record of such proceedings, and (4) the verdict was excessive. There can be no doubt of the first premise. The second is also correct so far as the direct connection of defendant and its counsel was with the loss is concerned. The third cannot be accepted as entirely accurate because we are not aware from the record of any effort to settle the bill of exceptions, even though stenographic notes of the trial proceedings were unavailable. See Chapter 59, Florida Statutes, 1941, and F.S.A. The quality of the fourth, which forms the basis of the only other question we shall consider and discuss, will be deferred for the moment.

The kernel of appellant's contentions, exclusive of the objection to the amount of the verdict, is that, to quote its brief, it was "deprived of the opportunity to present to this court a record of the trial proceedings in the lower court so that this court may determine whether on the entire record there has been a miscarriage of justice." To support the position appellant cites several cases relevant to the general proposition that loss of notes of the proceedings will warrant a new trial. The first of these is Scharff et al. v. Holschbach et al., 220 Mo. App. 1139, 296 S.W. 469. There the court held the destruction of notes of voluminous testimony, making impossible the construction of the record without them, justification for a new trial. In that case attempt had been made to compile the record, but this was found unfeasible, and even counsel for the victors in the suits had stated that he could not undertake to give an accurate account of the testimony he had offered. It is significant that the court referred to the voluminousness of the record. Among cases mentioned in this decision was Larson et al. v. Shockley et al., 231 S.W. 1030, where the court of Appeals of Missouri had refused to reverse and remand in an appeal from an order denying the motion for new trial made on the ground of the loss of the stenographer's notes. The reason for the action was that appellants had not been diligent, had not tried to prepare a bill of exceptions without the notes.

In Woods et al. v. Bottmos et al., 206 S.W. 410, cited also in Scharff v. Holschbach, supra, it is shown in the opinion that the stenographer had taken down the proceedings and that his notes were "preserved in the courthouse," which burned before the time expired to complete the transcript. The facts reflected in Todd v. Security Ins. Co., 206 S.W. 412, also referred to in Scharff v. Holschbach, supra, were strikingly similar. It was the duty of the court stenographer to preserve the proceedings which he had taken in shorthand, but they were totally destroyed when the courthouse where they were deposited burned. Every effort had been made on the part of the defendant to secure a bill of exceptions, but the evidence was so lengthy that the record could not be made from memory. The court observed that the destruction was a misfortune for which the defendant was in no wise to blame. In each of these cases it was ordered that a new trial be granted.

The next case relied upon by appellant is Reynolds v. Romano,96 Vt. 222, 118 A. 810, where a new trial was awarded, it having been demonstrated that a transcript was not obtainable because the "stenographic reporter, an official of the court," had removed from the jurisdiction of the court, was not under control of the court, and was not disposed to recognize any obligation to furnish the transcript.

We pass to Coan v. Plaza Equity Elevator Co., 60 N.D. 51,232 N.W. 298, where a new trial was ordered because the "official court reporter" died before his notes were transcribed, and inasmuch as he used a "different" system, a transcription could not be procured.

The Supreme Court of Indiana, Indianapolis Life Ins. Co. v. Lundquist, 222 Ind. 359, 53 N.E.2d 338, instructed the lower court to grant a reasonable time to submit a bill of exceptions where the notes of the official court reporter, "an arm of the court," had disappeared.

The Civil Court of Appeals of Texas in Fire Assn. of Philadelphia v. McNerney, 54 S.W. 1053, decided, where a charge given at the trial was lost by fire, together with many other papers, that "a party should not be deprived of his rights on appeal by loss of the record due to an accident not chargeableto him." (Italics furnished by us.)

In Shafer v. King, 82 Colo. 258, 259 P. 1042, absence of a complete transcript due to the incapacity of the "trial court reporter" was held sufficient reason to affirm an order setting aside the judgment.

The Supreme Court of, Oklahoma, Harris et al. v. First National Bank of Pryor Creek, 140 Okla. 269, 282 P. 1097, ordered a new trial when it was made to appear that the "court reporter" could not, because of physical inability, furnish a transcript.

The "court reporter," in Gibson et al. v. City of Chickasha,171 Okla. 284, 43 P.2d 95, advised the attorneys that he was unable "to prepare a case-made" because his notes had been lost in a flood, and a new trial was ordered because the loss was not attributable to counsel. This view was influenced largely by a statute providing that "when without fault of complaining party it becomes impossible to make case-made" there is ground for new trial. The same court in City of Duncan v. Abrams et al., 171 Okla. 619, 43 P.2d 720, held, however, that a party could not avail himself of the statute unless it appeared that it was impossible to make the case made without the transcript. Here the "reporter" died before translating his notes.

In Hodge Mattheis v. Vermont Stone Products Corporation,113 Vt. 491, 37 A.2d 183, the question before the court was not one of loss or failure to transcribe notes, but failure of the trial judge to sign the bill of exceptions within the required time due to his illness, a contingency held not imputable to petitioner.

And finally appellant refers us to Hitt et al. v. Carr et al., 77 Ind. App. 488, 130 N.E. 1, where the Supreme Court of Indiana invoked the familiar doctrine that "whenever by fraud, accident, mistake, or otherwise, an unfair advantage had been obtained in a proceeding at law, and it is against conscience to make use of such advantage, a court of equity will restrain the party from making use of the same . . ." Evidently the advantage sprang from a failure on the part of a circuit court clerk.

We have digested, albeit briefly, all cases cited by appellant except James v. French, 5 Pa. C. 270, which we cannot locate.

Many circumstances are prominent in these decisions, such as diligence exercised by counsel; impracticability of preparing a bill of exceptions without the reporter's notes; voluminosity of the file; impossibility because of loss by flood or fire, incapacity of the reporter or his failure to make the transcription. But they are not present in the instant case. For instance, in the matter of diligence of counsel, it cannot be disputed that they were quite attentive in their earnest efforts to procure the transcript by making repeated demands on the stenographer. It is true that they were not apprised of the loss of her notes until the last moment, but it is not established that any attempt whatever was made to prepare the bill of exceptions without these notes. Too, it is, to say the least, doubtful that the record could have been voluminous, as the trial required but one day. Here there is no evidence of destruction of the record by fire, flood, or any other unavoidable means.

The paramount condition which seems to us common to the decisions mentioned, dealing with situations where the loss was traceable to the fault of some person, and the present case is the identity of the person responsible. We have purposely placed in quotation marks the titles of the ones who took the shorthand notes, and it will be seen that they are variously described as "official court reporter," "arm of the court," "court reporter," "court stenographer," and so on. Miss Thompson was not a court reporter, not an official, not an arm of the court. The arrangement with her, or between counsel for the appellant and her, was purely private employment. So far as we are advised the plaintiff (appellee), her attorneys, or the court had nothing whatever to do with her selection to take and transcribe notes of the proceedings.

When we refer to the statutes we find a clear statement of the law referring to official court reporters, their appointment and duties. It is required that they be efficient and experienced, Section 29.01, Florida Statutes, 1941, and F.S.A.; and they shall "report the testimony and proceedings with objections made, the rulings of the court, the exceptions taken, and oral or written charges of the court in the trial of any civil case in said court upon the demand or request of theattorney for either party." Section 29.02, Ind. (Italics supplied.) If there is failure to perform these duties they may be penalized under Section 925.01, Florida Statutes, 1941, and F.S.A.

The first of these sections is introduced with the provision: "There shall be, whenever the presiding judge or judges shall deem it necessary in any judicial Circuit in this state, an official court reporter of testimony and proceedings in trials at law in the circuits." Now, it may be that it has not been considered necessary to have an official court reporter in the circuit where this case was tried, but, if not, the provisions of Section 29.07 could have been invoked. It provides that where such an officer has not been appointed or is disqualified or unable to serve "it shall be within the discretion of the judge to appoint a special reporter in any case, civil or criminal, upon demand of any of the parties therefor . . . ." (Italics supplied.)

There is nought in the record to show that the official court reporter was neglectful or even that one existed. The statute plainly requires a strict accountability of the court reporter, as an official, for the proper performance of his duties, and had there been one, his presence could have been compelled, as it was clearly his duty to be available to report the case. If there was none, or if the reporter could not act for reasons which would excuse him, counsel could have applied to the court for a special court reporter.

From a practical standpoint there might not be any advantage in such a course, the appointment of a special reporter, over the one pursued here, private employment of one, but in the predicament in which appellant finds itself there is a vast difference. Had the statute been followed, the person selected and appointed to take and transcribe the testimony would have immediately assumed an official status, would have become an "arm of the court," would have been directly responsible as such for the proper performance of his duties. This thought is borne out by one of the very cases cited by appellant, Indianapolis Life Ins. Co. v. Lundquist, supra, where it was written:

"Official court reporters are an arm of the court, charged with the duty of preserving a record of the evidence, and transcribing and certifying the record for use as a bill of exceptions, and it has long been the practice to rely upon the availability of such record. Where the sufficiency of the evidence is in question, this record is as important as the record kept and certified by the clerk. A failure to make this record available is a failure of the court which entitles theappellant to equitable relief." (Italics supplied.)

Miss Thompson was simply an employee engaged by counsel for appellant. The difference in such status and one created by appointment under the quoted statute is this: Appellant has not been deprived of its right to appeal by the short-coming or carelessness of anyone having any official status or responsibility, but by an employee of its own selection not bound by oath, or by any obligation save to the employer. Of course the predicament is the same as if she had been appointed by the court, but the principle, announced in appellant's last cited case, is vastly different. The appellee would not be allowed to profit from improper conduct of a court official, but certainly misfortune arising from the loss of the notes by one engaged by appellant's counsel should not be visited on appellee.

It could be strongly argued, the question of settlement without benefit of transcript aside, that the losing of notes by the official court reporter was in effect an act of the court for which appellant should not suffer. We are unable to sympathize with appellant's contention that the carelessness of the employee of one party could be charged to the opponent, or, to state it otherwise in agreement with the announcement in Hitt et al. v. Carr et al., supra, that this fault amounted to an unconscionable advantage over appellant which should render appellee's judgment unjust.

It is charged that the verdict is excessive as compensation for the loss of a husband 41 years of age, father of four children, who was earning $87.50 weekly at the time of his death and had earned approximately $35 each week before the war.

Counsel has industriously examined and cited to us nearly a score of cases showing the amounts of verdicts for deaths by wrongful acts approved by this court. With admirable candor he remarks that they establish no absolute rule but do serve as a yardstick in gauging the just awards in such cases.

We question the wisdom of reversing the case or reducing the judgment upon the basis of amounts sanctioned in other cases on facts peculiar to them, especially in view of the absence here of the testimony introduced in this case. Even were we to rely upon the statements in the record proper of the deceased's age and earning capacity at the time of his death and consult the mortality tables to take into consideration the various elements of damage which we have heretofore recognized, we could not conclude that the amount awarded was "grossly excessive," as appellant insists.

We have not been uninfluenced in arriving at our conclusions by the facts that the circuit judge who presided held the conviction that a "fair and impartial trial" was had denied the motion for a new trial, and stamped his approval on the verdict by entering judgment for the amount by the jury.

Affirmed.

CHAPMAN, C.J., BROWN and SEBRING, JJ., concur.