Great Am. Ins. Co. of N.Y. v. Suarez, Jr.

This action is upon a fire insurance policy for $5,000.00 on "tires, tubes and appurtenances" etc. Two previous judgments for the plaintiff were reversed. Great Am. Ins. Co. vs. Suarez, 92 Fla. 24, 109 So. 262; do 96 Fla. 865,119 So. 388, 120 So. 320. The verdict and judgment here considered were rendered July 16, 1930, awarding the plaintiff $5,390.00 which includes $3,000.00 damages with interest from September 13, 1923, and $750.00 attorney fees. A writ of error to the judgment was taken by the defendant, August 21, 1930.

The bill of exceptions duly authenticated by the trial Judge and made a part of the transcript of the record brought here on this writ of error, contains a statement that on July 19, 1930, the defendant was by order of court made at the same term in which the verdict was rendered, July 16, 1930, allowed until July 22, 1930, to file a motion for new trial and that such motion was "filed, docketed and recorded" July 22, 1930. This motion for new trial was by order denied by the trial Judge, August 16, 1930, during the term in which the verdict and judgment were rendered. The defendant was by the same order allowed ninety days from that date to present a bill of exceptions. A bill of exceptions, which included the motion for new trial, the order denying such motion, and an exception taken thereto, was duly authenticated by the trial Judge on October 23, 1930. The transcript also contains, outside of the bill of exceptions and without any authentication whatever by the trial Judge, a motion filed October 23, 1930, to strike the motion for new trial with objections thereto, and an order granting the motion to strike, with an exception thereto. As the motion for new trial was filed within the time allowed under Section 4498 (2811) C. G. L., and as the trial Judge afterwards considered and denied the motion, it will be assumed on this record that the motion for new trial was duly presented to the court, unless the contrary is duly shown by a properly authenticated transcript.

Even if, after the writ of error was issued to the judgment in the cause and filed in the trial court, the Judge of that court had authority to strike the motion for new trial that had been considered and denied by him, and the motion, the order thereon, and an exception thereto, had been incorporated in a bill of exceptions that had been duly authenticated by such Judge, the transcript brought here on the writ of error does not present the motion to strike the motion for new trial and the order made thereon in such authenticated form that the motion to strike and the order thereon with the exception thereto, may be considered by this court. Such motion to strike the motion for new trial and the order granting the motion to strike and the exception to such order, are not a part of the record proper, but are mattersin pais which are required by law to be, but are not, authenticated by the trial court by appropriate bill of exceptions or by other method, if any, that is permissible under the law and the rules of the court. Section 4612, Compiled General Laws, does not cure the defect in the transcript, since the motion to strike and the order thereon and the exception to the order, are not in any way properly authenticated. The certificate of the clerk to the transcript cannot give authenticity to matters in pais which had not been duly authenticated by the trial court. The mere copy of the order signed by the Judge granting the motion to strike the motion for new trial is not due authentication, since the motion for new trial and the order made thereon and the exception thereto, being matters in pais, the motion to strike and the order thereon, and the exception thereto, are also matters in pais and should in some proper manner be authenticated by the trial court and not merely by the certificate of the clerk attached to the transcript on writ of error. The motion for new trial, the order denying the motion and the exception taken to the order as contained in the certified transcript of the duly authenticated bill of exceptions may be considered by this court upon appropriate assignments of error.

A provision of the policy is that "this company shall not be liable beyond the actual value of the property at the time any loss or damage occurs." The court charged the jury that:

"If you find the plaintiff is entitled to recover in this case he is entitled to recover for whatever the amount you find was the value of the goods in there at the time of the fire, that would be his loss under the terms of this policy."

The evidence considered as an entirety clearly does not show that the actual value of the property at the time of the loss or damages awarded by the verdict and the judgment; and as a consequence the verdict is contrary to the evidence and the law. Further and detailed discussion of matters argued is unnecessary.

Reversed.

ELLIS, TERRELL, BROWN AND DAVIS, J.J., concur.

BUFORD, C.J., dissents.

ON MOTION FOR REHEARING.