
    Florida Fire & Casualty Insurance Company, Plaintiff in Error, v. Gerald E. Hart, Defendant in Error.
    
    Opinion Filed May 4, 1917.
    1. A new trial will not be ordered if it appears that the verdict was founded upon a consideration of conflicting evidence as to the material facts.
    2. Where the evidence does not tend to prove the material facts necessary to support the verdict under the pleadings or the verdict was found upon a misapplication of the facts a new trial should be granted.
    3. An allegation in a declaration that the plaintiff was elected by the Board of Directors of the defendant corporation as secretary for the company at a salary of two hundred dollars per month and then and there employed the plaintiff in such capacity until the next annual meeting of the company at the salary stated, is not supported by a resolution adopted by the Board of Directors the same day providing that: “The secretary of said company be granted the salary of two hundred dollars a month; that he is to take position as general manager of both fire and casualty departments.”
    4. There can be no recovery by the plaintiff in a'n action at law unless the evidence supports the case as made by the declaration. However meritorious a cause may be as shown by the evidence, if it is variant in substance from that pleaded by the plaintiff, there can be no recovery.
    Writ of Error to Circuit Court for Duval County, Daniel A. Simmons, Judge.
    Judgment reversed.
    
      Cockrell & Cockrell, for Plaintiff in Error;
    
      Frank L. Dancy, for Defendant in Error.
   Ellis, J.

Gerald E. Hart sued the Florida Fire and Casualty Insurance Company, hereinafter referred to as the defendant, in the Circuit Court for Duval County' upon a contract for personal services. The declaration alleged that the Board of Directors of the defendant corporation on or about April 8th, 1914, elected the plaintiff, Hart, as Secretary for the company at a salary of two hundred dollars per month, and then and there the defendant employed the plaintiff in such capacity until the next annual meeting of the company at the salary stated; that the plaintiff under that contract began work for the defendant and continued in its service from April 8th, 1914, to September 1st, 1914, when he was wrongfully and without cause discharged by the defendant. The plaintiff demanded the payment of the salary for the remainder of the term for which he was employed from September 1st, 1914, to February, 1915, inclusive. The suit was begun in September, 1914.

The defendant interposed four pleas, which in substance were as follows : First that it never was indebted; second, payment; third, never promised as alleged, and, fourth, a special traverse of the allegation that the plaintiff began work and worked for the defendant from April 8th to September 1st, 1914, on which day defendant wrongfully and without cause discharged the plaintiff. Issue was joined upon these pleas and the cause submitted to a jury, who returned a verdict for the plaintiff in the sum of one thousand and eighty dollars. Judgment was entered for the plaintiff, to which the defendant took writ of error.

There are three assignments of error, the last of which is: The court erred in denying the motion of the defendant to set aside the verdict and grant a new trial. This assignment is discussed first in the briefs, and we will pursue the same order in disposing of the questions presented.

The motion for a new trial contains twelve grounds. Under the assignment based upon the overruling of this motion it is contended that the evidence does not support the verdict; that the evidence preponderates in favor of the defendant to such an extent as that it is apparent the jury were influenced by matter other than the evidence in returning- the verdict for the plaintiff. The plea that the defendant never promised as alleged operated as a denial of the contract or agreement of employment, and the last plea denied the allegation that the defendant wrongfully and without cause discharged the plaintiff. The plea of never was indebted was inapplicable and the plea of payment has no support in the evidence. Therefore the questions presented upon this assignment are: Whether the plaintiff and the defendant entered into- an agreement on or about April 8th, 1914, whereby the defendant employed the plaintiff as its secretary from April 8th, 1914, until the next annual meeting of the defendant company at a salary of two hundred dollars per month, and, second, whether before the expiration of such period of employment the defendant wrongfully and without cause discharged the plaintiff ?

In the case of Carney v. Stringfellow, decided at the present term, this court speaking through Mr. Justice Whitfield, said: “ A stronger showing is required to reverse an order allowing a new trial than to- reverse one denying it,” and quoting from the case of Schultz v. Pacific Insurance Co., 14 Fla. 73, said: “A very clear and strong case must be made out before this court would feel justified in reversing his (the trial judge’s) action. It should be a very plain case, to justify in appellate court in setting- aside this concurrent conclusion of both court and jury, upon the ground, that their action was contrary to the evidence or weight of evidence.” In the Schultz case, supra, the court said: “It is within the province and power of the court to set aside a verdict which does not reach a substantially just conclusion in cases where the conflicts are of such character, and the circumstances of such nature, as to give just ground for the belief that the jury acted through prejudice, passion, mistake or any other cause which should not properly control them. This power exists in the court.” See also Alvord, Kellogg & Campbell v. Little, 16. Fla. 158; Wilson v. Marks, 18 Fla. 322; Clark v. Pope, 29 Fla. 238, 10 South. Rep. 586; Browning v. State, 41 Fla. 271, 26 South. Rep. 639; Tampa Water Works Co. v. Mugge, 60 Fla. 263, 53 South. Rep. 943; Florida East Coast Ry. Co. v. Geiger, 66 Fla. 582, 64 South. Rep. 238.

In the case of Wilson v. Jernigan, 57 Fla. 277, 49 South. Rep. 44, this court discussed the principle which should control a trial judge in passing upon a motion for a new trial based upon the ground" that the evidence “is insufficient to support the verdict.” The question, said the court, is not what the judge may think the jury ought to have done, nor what the judge may think he would have done as a juror, but whether as reasonable .men they could have found such a verdict. In passing upoma motion for a new trial involving the sufficiency of the evidence to support the verdict the same question is presented to the appellate court as is presented to the trial court; but when the question reaches the appellate court and an assignment of error is based on an order overruling the motion for a new trial, there is necessarily added to the presumption of the verdict’s reasonableness the weight of the judge’s opinion. The opinion which is seemingly entertained by counsel for plaintiff in error that the verdict of a jury should not be permitted by this court to -stand if there is a preponderance of evidence .-against it has no foundation in any decision of this court. The case of Tampa Water Works Co. v. Mugge, supra, when read in connection with the facts shows that the evidence “overwhelmingly” preponderates against the verdict. It was a case in which “a substantially just conclusion” was not reached by the jury, as was said by Mr. Justice Westcott in Schultz v. Pacific Insurance Co., supra. The finding wap unreasonable, being so contrary to the manifest weight of the evidence that the court might consider that the'jury had not really performed the judicial duty cast upon them, as was said by Lord Halsbury in Metropolitan Ry. Co. v. Wright, L. R. 11 App. Cas. 152, and quoted approvingly in Wilson v. Jernigan, supra.

This .court said in McMurray v. Basnett, 18 Fla., 609, that he verdict should not be set aside although the evidence seems to preponderate against the finding of the jury, where the jury has to decide upon the credibility of witnesses, “unless there is ground for the belief that the jury acted through prejudice, passion, mistake, or any other cause which should not properly control them.” See also Tallahassee Railroad Co. v. Macon, 8 Fla. 299; Ammons v. State, 9 Fla. 530; Pensacola and Georgia Railroad Co. v. Nash, 12 Fla. 497; Simms v. Hodges, 34 Fla. 498, 16 South. Rep. 317. In the Mugge case the trial court expressed in his order that he was of the “opinion that the testimony preponderated in favor of the defendant,” but denied the order. This court said: If the trial judge, was of the opinion that the preponderance of the evidence was manifestly in favor of the defendant, it was the court’s duty to have granted the new trial. It was because the trial court refused to exercise his judicial discretion that this court held the ruling to be erroneous. A motion for a new trial is á remedy accorded to a party litigant for the correction of any injustice that might have been done by the verdict of a jury. He has the right to invoke the discretion of the trial judge as to whether the injustice of the verdict is such that he ought to have an opportunity to take the case before another jury. In exercising this discretion the judge determines whether the-verdict was against the great weight of the evidence. If he refuses to exercise this discretion he deprives the party who invoked it of a substantial right. This is the principle held by many of the authoritiés cited in the Mugge case. See Felton v. Spiro, 78 Fed. Rep. 576; Vaulx v. Tennessee Cent. R. Co., 120 Tenn. 316, 108 S. W. Rep. 1142; Kansas Pacific Railway Co. v. Kunkel, 17 Kan. 145. In the latter case the opinion was rendered by Mr. Justice-BREWER in which he said: “The case comes clearly within the rule so often declared by this court, that where there is clear and positive testimony sustaining every essential fact, and the verdict has received the approval of the trial court, this court will not interfere, even though the testimony seems to greatly preponderate the other way.” In that opinion he reviewed the decisions of many courts pointing out that the rule he announced was generally applied. Counsel contend that nisi priiis judges hesitate to set aside a Verdict because of the implied reflection upon the jury’s intelligence or integrity, assuming that in setting aside a verdict the trial court implies that the jury were improperly influenced by considerations outside the evidence. We do not know how this ma)'- be in fact. The writer’s experience as a practitioner did not lead him to such a view. In passing upon a motion for a new trial involving the sufficiency of the evidence to support the verdict the trial court does not substitute his judgment for that of the jury whose province it is to settle, questions of fact, but whether the verdict is conformable to reason. That is to say, could a reasonable person, upon the evidence submitted, entertain fhe. jury’s opinion? Judge Brewer said, and such has been the holding of this court, if the trial judge thinks that from mistake or prejudice, or other cause, the jury have found against the fair preponderance of the evidence, it is his duty to set the verdict aside and grant a new trial. The mistake, however, may not proceed from any improper or wilfully wrong conduct. It may be the result of mistake, not conformable to reason, the verdict may be. absurd or whimsical. See the discussion in Wilson v. Jernigan, supra. When this court comes to consider the case upon the record and it appears that the trial judge has exercised his discretion and approved the. verdict,' it must be taken, as Judge Brewer said, as the judge’s certificate that the verdict is either fully in accord with his belief upon the testimony, or else that there was such a fair and reasonable doubt as to the weight of the evidence pro and con that hone'st and intelligent minds might fairly differ in their conclusions, and that therefore the verdict of the jury should be accepted as just. “We have, therefore, not the witnesses but the finding of the jury prima facie right, and also the approval of the only judge who has anything like full opportunities of knowing whether it was right. Under these, circumstances it should be a very clear case before a reviewing court should interfere.” Applying the rule to this case, if the verdict was founded upon a consideration of conflicting testimony as to the material facts, we .cannot disturb it, even though we might have, as jurors come to.a different conclusion. If it was found upon testimony which does not tend to prove a material fact necessary to entitle the plaintiff to recover and upon an entire misapplication of the. facts, a new trial should be ordered. See Pensacola and Georgia Railroad Co. v. Nash, supra.

The theory unon which the declaration is framed is that as the Board of Directors of the defendant corporation elected the plaintiff in April, 19x4, as secretary of the corporation, it thereby employed the plaintiff to work for it iir that capacity until the next annual meeting of the company, at a salary of two hundred dollars per month. The plea of the defendant that it never promised as allegecl put this proposition in issue. The burden was upon the plaintiff to show by a preponderance of the evidence that it was true. The. charter and by-laws of the defendant corporation that were introduced in evidence do not show that any salary whatever was attached to the office of secretary. Section 5 of the charter of the corporation provides: “The officers, other than the members of the managing boards, shall be elected by the directors at the first meeting next after the first election, or as soon thereafter as may be, and succeeding elections of such officers shall be as prescribed from time to time in the "by-laws.” Article V, Section 1, of the by-laws is as follows: “Section 1. Choice. Term of Office. The President, Three Vice-Presidents, Secretary and Treasurer shall be chosen annually at the first meeting of the directors, or failing then, at a subsequent meeting. Such officers to hold until the next annual meeting, and until their successors respectively are elected and qualified, or until they are respectively removed by the managing board.” At the time the plaintiff was elected secretary, according to his testimony, there was no managing board; it has been abandoned. The reason for the discontinuance of this board is shown by the. minutes of the Board of Directors of April 7th and 8th,'1914, as introduced by the plaintiff. These minutes show that the question was raised as to the legality of such a board, it had powers “oyer and above the powers of the Board of Directors and that such managing board should be discontinued;” whereupon the three men constituting that board resigned and their resignations were accepted. The minutes then show the election of the plaintiff as secretary, and the adoption of a resolution by the directors that the “secretary of said company.be granted the salary of two hundred dollars a month; that'he is to take position as general manager of both fire and casualty departments.” The. plaintiff continued to exercise the duties of the position as secretary of the. company until August 18th, 1914, when on account of some difficulties the corporation seemed to be in, a new Board of Directors was elected upon the request of the “State. Board of Insurance Commissioners.” On August 19th Mr. E. A. Groover took possession of the records of the secretary, according to the plaintiff’s testimony. The offices were, removed to another building and the plaintiff was paid his salary to August 31st, 1914. On September'1st the plaintiff received a letter from E. A. Groover as Vice President, advising the. plaintiff that the office of “Secretary and Manager of the Florida Fire and Casualty Company” had been declared vacant and that the services^ of the plaintiff were no longer desired. In that letter the plaintiff was requested to “deliver up all the. records and property belonging to the company.” There was some correspondence between the plaintiff and the company’s officers relating to the plaintiff’s duties as secretary and his salary after this suit was instituted which is unimportant, and unnecessary to be mentioned particularly. Section Five of Article Five of the by-laws defines the duties of the secretary. That officer was subject to the control and direction of the Managing Board; he had the custody of all books and papers of the company except such as the Treasurer was required to keep, he was to keep the minutes of the stockholders’ meetings, and those'of the directors and managing board, to keep the stock certificate books, transfer book, stock inventory book, the seal of the company, and to sign with the President all certificates of stock and affix the seal to such certificates, to give notice of all meetings of the stockholders, directors and managing board, and attend generally to the. records of the company and perform such duties as may be prescribed by the managing board or the board of directors. On July 17, 1914, the plaintiff as secretary caused to be published a notice of a special meeting of the company to be held on August 18th, for the purpose of electing a Board of Directors, considering - the then condition of the company’s affairs, voting upon the proposition to reduce-the capital stock of the company, and to take such steps as may be necessary to meet the demands of the Board of Insurance' Commissioners of the State of Florida, and for the transaction of any other business which may properly come before the meeting.

At the time the plaintiff was elected secretary he was working for the company as “Chief Clerk in the Casualty Department,” and after that the Managing Board took no ■further part in the affairs of the compapy. It is apparent from this evidence that the. resolution of the Board of Directors -of April 7th and 8th providing for the payment to the secretary of a salary of two hundred dollars per month was ‘to provide compensation for his services not only as secretary, but as general manager of both “fire and casualty departments.” The managing board which seemed up to that time to have the general management and direction of the company’s affairs was discontinued, and the. plaintiff’s duties according to his own testimony under that employment were to' “keep all records of the company, attend to the business of the company in every form and shape, attend the board meetings and take their minutes and enter them up in the minute book, all applications for risks of every kind, fire, employers’ liability, accident and health and plate glass and so on, and I had to pass ánd approve, in addition to which I had all the duties to perform in the ordinary way of the manager of ■ a company.” That portion of the duties imposed by this employment which theretofore the secretary had performed without compensation, constituted relatively a small part of the duties under the new employment. The duties of secretary were prescribed by the by-laws for the performance, of which no compensation was provided by by-law. The compensation for the new employment was fixed by the Board of Directors, and that resolution made no provision for an employment for any definite time beyond the month. Nor does the plaintiff say in his testimony that the employment was for any definite length of time. Upon cross-examination the plaintiff said: “The nature of the work that I was to do when I undertook to do this work for the company for which I was given this two hundred dollar salary, was the entire management of the company, all the branches of the business, the under-writing business—both casualty and fire.” Before his employment he went before the Board of Directors and told them what his qualifications were for doing that kind of work, and he said “they went pretty thoroughly into my qualifications for that kind of work.” It does not appear from the plaintiff’s testimony, however, that the employment was for any definite time, except during a meeting of the directors in August, 1914, when protesting against his removal he said: “I am secretary of this company, elected from February to February, and I intend to hold the position.” On being called in rebuttal he said that when he was elected secretary no information was given him that the position was a temporary one. The material allegation of the declaration that the plaintiff was elected 'as secretary of the company until the next annual meeting of the company, at a salary of two hundred dollars per month, has no support whatever in the evidence, either in the testimony of the witnesses, the minutes of the .board of directors or the charter and by-laws of the company. The conclusion is irresistible, therefore, that the jury through a misapprehension'of the issue, mistakenly considered the resolution of the Board of Directors of August 8th, 1914, to be a proposition of employment of the plaintiff in the capacity of secretary until the next annual meeting at a salary of two hundred dollars per 'month. Whereas the issue under the pleadings was, whether the plaintiff’s election as secretary carried with it under the by-laws.an employment in that capacity for that length of time at such salary per month. If the declaration had been framed upon the resolution as a contract of employment of the secretary as secretary and general manager of both fire and casualty departments of the company at a salary of two hundred dollars per month until the next annual meeting of the company, the resolution supplemented by testimony as to the duration of employment as claimed by the plaintiff, would have tended strongly to support the plaintiff’s cause; but as the issue was presented to the jury, the resolution was valueless as it merely established an agreement to pay the secretary as secretary and general manager of both the fire and casualty departments of the company a salary of two hundred dollars per month for an indefinite time. It is unnecessary to discitss the evidence as to the purpose of the resolution and the time for which the secretary was to be paid the salary for discharging the duties of secretary and general manager of both fire and casualty departments. We have examined the testimony and find that the defendant’s witnesses, were uncontradicted as to the fact that the employment was a tempo rary one. only. The trial court’s denial of the motion for a new trial therefore was erroneous, in that the verdict' was unsupported by the evidence, and showed it to have been rendered under a misapprehension of the facts. The rule has long since been established in this State that the evidence must support the. case made b)r the declaration, and however meritorious a cause may be shown by the evidence, if it is variant in substance from that pleaded by the plaintiff there can be no recovery. See Coons v. Pritchard, 69 Fla. 362, 68 South. Rep. 225; Dexter v. Seaboard Air Line Ry., 55 Fla. 292, 45 South. Rep. 887; Lofton v. Jacksonville Electric Co., 61 Fla. 293, 54 South. Rep. 959.

The judgment of the Circuit Court is therefore reversed.

Browne, C. J., and Taylor, Shackleforo and Whitfield, J. J., concur.  