Opinion
Nos. 72-247, 72-259.
June 29, 1973.
Appeal from the Circuit Court for Broward County, James F. Minnet, J.
Steven R. Berger, Carey, Dwyer, Austin, Cole Selwood, Miami, for appellants-appellees; B.W. Butler, Inc., and T-Y Corp.
James A. Smith, Wicker, Smith, Pyszka, Blomqvist Davant, Miami, for appellants-appellees, Civil Air Patrol and Joel Katz.
Sheldon J. Schlesinger, Simons Schlesinger, Hollywood, for appellee, Anderman.
In an action for personal injuries the jury returned a verdict in favor of all defendants, upon which judgment was entered. The plaintiffs' timely motion for a new trial was granted, the court finding that the verdict was against the manifest weight of the evidence. It is this order which the defendants have appealed.
Recognizing, as we do, that the trial court exercises a broad discretion in the granting of a motion for new trial on the grounds that the verdict is against the manifest weight of the evidence, and that such ruling should not be disturbed in the absence of a clear showing of abuse, Cloud v. Fallis, Fla. 1959, 110 So.2d 669, we have reviewed the record for the purpose of ascertaining whether an abuse of discretion is clearly shown. Russo v. Clark, Fla. 1962, 147 So.2d 1. We conclude that it is. The verdict not only is not contrary to the manifest weight of the evidence, but is in fact supported by the overwhelming weight of the evidence. The order granting the plaintiffs' motion for a new trial is reversed and this cause is remanded with directions to reinstate the jury verdict and the judgment thereon.
Reversed and remanded.
WALDEN and OWEN, JJ., concur.
MAGER, J., dissents with opinion.
The dilemma in which an appellate court finds itself when reviewing an order of the trial court granting a new trial on the ground that the verdict was against the manifest weight of the evidence is perhaps best illustrated by the decision of Russo v. Clark, supra. Having first quashed the decision of the district court of appeal, which had reversed the trial court's grant of a new trial, the Supreme Court, on rehearing, in a four-to-three decision, reversed its own position and reinstated the decision of the district court of appeal (and the jury verdict). In my opinion, and for the reasons more specifically set forth in Pittman v. Smith, Fla.App. 1971, 252 So.2d 279, I am inclined to leave the trial court's determination undisturbed. Cf. Hubbard v. Brown, Fla.App. 1972, 262 So.2d 267. I therefore respectfully dissent.