JOHN G. HERRIN, PLAINTIFF IN ERROR,
v.
AVON MANUFACTURING COMPANY, A CORPORATION, DEFENDANT IN ERROR
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In this negligence action for personal injuries sustained during employment, the trial court granted the defendant's motion for a new trial after a jury verdict in plaintiff's favor. The Florida Supreme Court affirmed the trial court's discretionary decision to grant the new trial, holding that absent an abuse of discretion or violation of law, the granting of a motion for new trial is not reversible error.
The court held that the extension order was not reversible error because the statute did not require notice to opposing counsel and the trial court had sufficient grounds under the statute to extend the time. More significantly, the court held that the granting of a motion for new trial is not reversible error when it does not affirmatively appear from the record that judicial discretion has been abused or that any law has been violated.
“It is not disputed that the order extending the time for making and presenting the motion for new trial was made during the term in open court and within four days after the rendition of the verdict.”
Establishes the procedural posture and the trial court's compliance with statutory timing requirements for extending the motion for new trial period.
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Join FLexlaw to unlock all legal intelligenceJohn G. Herrin was injured while employed by Avon Manufacturing Company, allegedly due to the company's negligence. A jury returned a verdict in favor…
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West, J.
This is an action to recover damages for pew sonal injuries sustained by plaintiff while in defendant’s employ and as a result of its alleged negligence. There was a verdict and judgment for plaintiff. Upon motion the verdict was set aside and a new trial awarded. To review this order writ of error was taken from this court.
Errors are assigned upon (1) the trial court’s order extending the time for fifteen days from the rendition of the verdict for the presentation by° defendant of a motion for new trial, (2) orders subsequently made denying motions of plaintiff to vacate the order extending the' time, and (3) the order granting defendant’s motion for a new trial. The verdict was returned on February 7, 1923. Judgment was entered on the following day. During the same day, upon motion of counsel, defendant was allowed fifteen days from the rendition of the verdict in which to present its motion for new trial. It is not disputed that the order extending the time for making and presenting the motion for new trial was made during the term in open court and within four days after the rendition of the verdict.
It is contended that the Court should not have entertained the motion without notice to plaintiff, or his counsel, with an opportunity to be heard in opposition to it. There is nothing in the statute requiring notice of such application and “cause shown” to be given opposing counsel. Sec. 2811, Rev. Gen. Stat. Nor is there a rule of court requiring such notice. There is contained in the grounds of the motion for an extension of time a recital that'it “is impossible to file said motion within four days” for the reason that the court reporter would not be áble to' transcribe his stenographic notes of the proceedings, with defendant’s exceptions to rulings during the progress of the trial, within that time.
The trial court considered the showing made sufficient under the statute and accordingly made the order extending the time for presenting the motion for new trial for fifteen days from the rendition of the verdict. It is assumed that in the usual course of procedure notice of such application would be given opposing counsel, but the court may proceed to consider and act upon such application although notice thereof may not have been given opposing counsel. Nothing other than a failure to give such notice appearing to vitiate the court’s action, the order extending the time, in accordance with the provisions of the statute, will not be held to be reversible error. The motion for new trial was granted upon the ground that “the verdict is contrary to the law and evidence.” Having been granted upon this ground, it is impossible to do more than speculate as to the specific considerations affecting the conclusion reached. The trend of the arguments in briefs of counsel suggests that the court may have regarded as unsatisfactory the evidence of defendant’s alleged negligence as the proximate cause of plaintiff's injury, or may have entertained the view that under the evidence contributory negligence of plaintiff was proved. We express' no opinion on either of these questions. They are vital points in the case and the evidence does not palpably preponderate in favor of the verdict. The order of the trial court in granting the new trial is presumably proper. It does not affirmatively appear from the record that judicial discretion has been abused, resulting in injustice, or that any law has been violated in granting a new trial. Upon the authority of the following decisions the granting of the motion for new trial was not reversible error. Cheney v. Roberts, 77 Fla. 324, 81 South. Rep. 475; Ruff v.
G. S. & F. Ry. Co., 67 Fla. 224, 64 South. Rep. 782; Orchard v.
C. H. & N. Ry. Co., 66 Fla. 353, 63 South. Rep. 717; Acosta v. Gingles, 65 Fla. 507, 62 South. Rep. 582; Jones v. Jacksonville Electric Co., 56 Fla. 452, 47 South. Rep. 1; L. & N. R. R. Co. v. Wade, 49 Fla. 179, 38 South. Rep. 49.
Affirmed.
Whitfield, P. J., and Terrell, J., concur. Taylor, O. J., and Ellis and Browne, J. J., concur in The opinion.
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Citator
Cited By
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Zigler v. Erler Corp., 102 Fla. 981 (Fla. 1931)…an be considered are those involved in the order from which the writ of error is taken. Carney vs. Stringfellow, 73 Fla. 700, 74 So. 866 and cases cited. Such order will not be reversed where no abuse of discretion appears. Herrin vs. Avon Mfg. Co., 87 Fla. 385, 100 So. 174, and cases cited. No such abuse appears in this case. The defendant in error has filed six cross assignments of error. These question the right of the plaintiff in error to maintain the suit and the sufficiency of the pleadings on plai…
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City of Miami v. Bopp, 117 Fla. 532 (Fla. 1934)…nville Elec. Co., 56 Fla. 452, 47 Sou. 1; Zackery v. Georgia, etc., R. Co., 62 Fla. 419, 56 So. 686; Anthony Farms Co. v. Seaboard Air Line Ry., 69 Fla. 188, 67 So. 913; Miami Transit Co. v. Mowry, 103 Fla. 840, 138 So. 481; Herrin v. Avon Mfg. Co., 87 Fla. 385, 100 So. 174; Florida East Coast Ry. Co. v. Turner, 103 Fla. 300, 137 Sou. 255; Ruff v. Georgia, etc., Ry. Co., 67 Fla. 224, 64 So. 782; Cheyney v. Roberts, 77 Fla. 324, 81 So. 475; Carney v. Stringfellow, 73 Fla. 700, 74 So. 866; Lockhart v. Butt-L…
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Kight v. Am. Eagle Fire Ins. Co. of N.Y., 131 Fla. 764 (Fla. 1938)…order granting a new trial will not be disturbed in the absence of abuse of discretion and violation of settled law. See Woods v. A. C. L. R. R. Co., 100 Fla. 909, text 911, 130 So. 577, and authorities cited. In the case of Herrin v. Avon Mfg. Co., 87 Fla. 385, text 387, 100 So. 174, this Court said: “* * * The order of the trial court in granting the new trial is presumably proper. It does not affirmatively appear from the record that judicial discretion has been abused, resulting in injustice, or that…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Theola Ruff v. Georgia, 67 Fla. 224 (Fla. 1914)
- Jones v. Jacksonville Elec. Co., 56 Fla. 452 (Fla. 1908)
- Cheney v. Roberts, 77 Fla. 324 (Fla. 1919)
- The Louisville & Nashville R.R. Co. v. Wade, 49 Fla. 179 (Fla. 1905)
- Sallie Acosta v. Gingles, 65 Fla. 507 (Fla. 1913)
- Orchard v. Charlotte Harbor & N. Ry. Co., 66 Fla. 353 (Fla. 1913)