Opinion
No. 59-176.
March 10, 1960. Rehearing Denied May 2, 1960.
Appeal from the Circuit Court for Monroe County, Aquilino Lopez, Jr., J.
Sibley, Grusmark, Barkdull King, Miami Beach, and William V. Albury, Key West, for appellant.
L.G. Woodard, Miami, and Julius Stone, Jr., Key West, for appellees.
The plaintiff in an action for breach of contract appealed from a final judgment based upon an adverse jury verdict. The error assigned is the denial of plaintiff's motion at the conclusion of all the evidence for a directed verdict "as to liability". A review of those portions of the lengthy record, to which our attention has been directed by the briefs and oral arguments, supports appellees' contention that the appellant does not bring itself under the rule that when the plaintiff fully makes out a case, and the defendant wholly fails to meet the burden of proof to sustain the defense pleaded, a peremptory charge to find for the plaintiff is proper and should be given if requested. New England Mut. Life Ins. Co. v. Huckins, 127 Fla. 540, 173 So. 696; Bland v. Fidelity Trust Co., 71 Fla. 499, 71 So. 636, L.R.A. 1916F, 209; Ocala Iron Works v. Crosby, 61 Fla. 369, 54 So. 815.
Affirmed.
PEARSON, Acting Chief Judge. CARROLL, CHAS., J., and MILLEDGE, STANLEY, Associate Judge, concur.
On Petition for Rehearing
The appellant's petition for rehearing having been examined and considered, and it appearing to a majority of the court that the petition is without merit, and should be denied, it is so ordered.
PEARSON, Acting Chief Judge, and CARROLL, CHAS., J., concur.
MILLEDGE, STANLEY, Associate Judge, dissents.
I think that the petition for rehearing should be granted. I now agree with the appellant that on the issue of a breach of contract that there was no conflict in the evidence. There was great conflict in the evidence but the conflict was on the question of whether the obvious damage sustained was the result of the breach or the result of another entirely different cause. There being no conflict in the evidence on the issue of breach the plaintiff was entitled at least to nominal damages, which would have carried the costs. Price v. Southern Home Ins. Co. of the Carolinas, 1930, 100 Fla. 338, 129 So. 748. Whether the plaintiff got anything more than nominal damages should depend on how the jury resolved the conflict in evidence on that question above. The whole case was submitted to the jury which returned a general verdict for the defendant so that it is impossible to know whether this was because the jury found that no breach existed or because the plaintiff failed to convince the jury that the damages sustained resulted from the breach. This being the case, I think that the cause should be remanded so that a verdict for plaintiff could be directed and the issue of actual damages submitted to the jury. This case suggests the occasional value of a special verdict. If I were speaking for the court, a special verdict might have saved a long, expensive new trial. The fact that I am not does not detract from the force of my observation.