Southern Pine Co. v. Powell

Shackleford, J. (after stating the facts'). — The first error assigned is as follows: “That the said Circuit Court erred in giving the following portion of the oral charge, which it gave to the jury of its own motion, to-wit: ‘You, therefore, start out, gentlemen, with an admission on both sides that the property was at one time, prior to the attachment, the property of J. P. Middlemas & Company. You go by the testimony from that point to reach your conclusions as to whether the claimant is entitled to the property or whether the plaintiff in the attachment suit is entitled to make his debt of J. P. Middlemas & Company,’ to the giving of which portion of the said oral charge, the said claimant, Southern Pine Company of Georgia, then and there. cepted.” [157] In passing upon this assignment this court is restricted to the examination of said instruction and the statement accompanying the same, as provided by special rule 3, as said instruction and statement are made to appear in the ordinary bill of exceptions. Daytona Bridge Company v. Bond, 47 Fla. 136, 36 South. Rep. 445, and authorities therein cited. The statement accompanying said charge is rather lengthy and we deem it unnecessary to set it forth in detail. Suffice it to say that we have given the same a careful examination and have failed to find anywhere therein any admission that the attached “property was, at one time, prior to the attachment, the property of J. P. Middlemas & Company.” On the contrary, there was evidence, according to said statement, tending to show that there was some lumber in the 180,000 feet attached which had been received from others than J. P. Middlemas & Company, some 34,780 feet having been purchased by claimant from the Inverness Lumber Company and delivered to claimant on the dock, where all of the lumber in question was. There being no admission “on both sides” that said attached property was at one time, prior to the attachment, the property of J. P. Middlemas & Company, and there being some evidence which at least tended to show that some of the property in question was not the property of the defendants in attachment prior to the attachment, it was error to give this instruction to the jury, the tendency of which was to mislead and confuse the jury. This of itself is sufficient cause for reversal. See Meinhardt Bros. & Co. v. Mode, 25 Fla. 181, 5 South. Rep. 672; Livingston v. Anderson, 30 Fla. 117, text 131, 11 South. Rep. 270; Mayer Bros. v. Wilkins, 37 Fla. 244, 19 South. Rep. 632. However, in our opinion, said instruction is objectionable for the further reason that it is violative of section 1088 of Rev. Stats. 1892, which requires the trial judge to charge the jury “only upon the law of the case.” That an instruction upon the facts, or assuming as proven fact mat [158] ters which upon the trial are in dispute, or concerning which there is conflicting evidence, is erroneous, see Doggett v. Jordan, 2 Fla. 541; Florida Cent. & P. R. Co. v. Foxworth, 41 Fla. 1, 25 South. Rep. 338; Baker v. Chatfield, 23 Fla. 540, 2 South. Rep. 822; Ashmead v. Wilson, 22 Fla. 255; Louisville & Nashville R. R. Co. v. Yniestra, 21 Fla. 700; Ferguson v. Porter, 3 Fla. 27; Pinson v. State, 28 Fla. 735, text 749, 9 South. Rep. 706; Collins v. State, 13 Fla. 651. Having found this error, which is sufficient to cause a reversal of the judgment, it becomes unnecessary for us to consider the other errors complained of, as they need not necessarily arise upon another trial of the cause. For the error found the judgment must be reversed and a new trial awarded, and it is so ordered, at the cost of the defendants in error. Taylor, C. J., and Cockrell, Hocker and Whitfield, JJT., concur. Carter, J., absent.