Opinion
Nos. 61-546, 61-547.
April 17, 1962. Rehearing Denied May 8, 1962.
Appeal from the Circuit Court, Dade County, George E. Schulz, J.
Miles Nelson, Hialeah, and Dixon, DeJarnette, Bradford, Williams, McKay Kimbrell, Miami, for appellants.
Carey, Goodman, Terry, Dwyer Austin and Joseph A. McGowan, Miami, for appellees.
Before HORTON, CARROLL and BARKDULL, JJ.
The appellants were injured in a rear end automobile collision of considerable severity. Their separate actions, against the owner and the driver of the automobile which struck their car from the rear, were consolidated and tried before a jury. Verdicts were directed for the plaintiffs on liability. The jury awarded $3,000 damages to Frank Scott and $2,000 to Florence Scott. The plaintiffs filed separate appeals from the judgments entered on the verdicts, and the appeals were briefed and argued together. Appellants contend here that the verdicts were inadequate, having assigned as error the refusal of the trial court to grant a new trial on that ground.
The plaintiffs were blameless in the accident. The defendant driver, who overtook and ran into plaintiffs' car, admitted he was in need of sleep and was "nodding" at the time.
The only evidence submitted was that produced by the plaintiffs. Mrs. Scott showed medical expense of $1,716. Mr. Scott showed medical expense and car damage amounting to $3,100. It is apparent from the record that the jury failed to give effect to other established elements of damage, and was swayed by bias and prejudice.
The jury well may have become disenchanted with these plaintiffs. On certain matters which had no material bearing on the merits of their cases, such as their marital status, their testimony was conflicting and unreliable.
Both plaintiffs received substantial injuries. As argued by their counsel, without considering any testimony of the plaintiffs of subjective complaints or as to which their credibility was questioned, the testimony of the doctors, including the court-appointed physician, together with the documentary evidence, sufficiently established, as compensable elements of damage, their injuries, pain and suffering, some permanent partial disability and loss of earnings, in addition to their out-of-pocket expense. There was no question of whether those elements of damage were attributable to other prior injuries. Nor was the medical evidence here based solely or principally on subjective complaints.
It is only with reluctance that an appellate court will reverse a trial court on a ruling involving the exercise of discretion on refusal to grant a new trial. However, when it is made to appear that a verdict is grossly inadequate, as a result of some prejudice or passion on the part of the jury, or some misconception of the law or evidence, or that the jury did not consider all the elements of damage involved, or failed to discharge their duty as given them by the court's charge, such a verdict should be set aside with provision made for a new trial. Breitbart v. State Road Department of Florida, Fla.App. 1959, 116 So.2d 458, 460; Wise v. Jacksonville Gas Corp., Fla.App. 1957, 97 So.2d 704, 706; Allen v. Powell, 152 Fla. 443, 12 So.2d 378; Radiant Oil Co. v. Herring, 146 Fla. 154, 200 So. 376; Elks Club of Tampa v. Adair, 95 Fla. 415, 116 So. 26; De La Vallina v. De La Vallina, 90 Fla. 905, 107 So. 339; De Vane v. Bauman, 82 Fla. 346, 90 So. 192.
For the reasons stated we are of the opinion that the ends of justice will best be served by granting a new trial on damages in these two cases.
Reversed and remanded for new trial on damages.
I respectfully dissent from the decision and opinion of the majority in this case.
This was a rear end automobile collision which resulted in a suit for personal injuries and damages allegedly resulting therefrom. At the trial, the appellees did not offer any evidence and the court directed a verdict as to liability in favor of the appellants. The case went to the jury upon the question of damages only. I would affirm the judgments appealed.
It is suggested in footnote 2 of the majority opinion that the jury may have become "disenchanted" with the appellants by reason of their testimony on matters not material to the merits of their cause. On depositions, the appellants testified they went through a ceremonial marriage, whereas at the trial, they completely contradicted themselves and testified that they had contracted a common law marriage after the accident. It would seem that the jury became more than "disenchanted" with the appellants. They simply refused to believe their testimony in its entirety in the face of admitted contradictions. This, I believe, the jury had a right to do. Certainly this record, in places, suggests that the appellants and the truth had become estranged if not total strangers.
It would serve no useful purpose to delineate the inconsistencies between the appellants' testimony at trial and that contained in their depositions. Suffice it to say that there was sufficient evidence before the jury to permit them, in line with the court's charges on credibility of witnesses, generally and the appellant husband's in particular, to conclude that some of the appellants' testimony was not worthy of belief. I believe that the jury properly followed the court's charges and, under the circumstances, arrived at a just verdict.
Diluted to its substance, the appellants' argument is that since the appellees' fault occasioned the accident, the jury, in the absence of any evidence by the appellees, was duty bound to bring back a verdict for all medical expenses incurred, loss of earnings, loss of earning capacity, as well as for pain and suffering, without any regard whatsoever to whether or not the testimony and evidence as to the amount of the expense incurred and the necessity therefor was plausible under the circumstances.
I believe this case should be controlled by the principles contained in Glasser v. Leary, Fla. 1953, 67 So.2d 683; Chomont v. Ward, Fla. 1958, 103 So.2d 635; and Heymann v. Fusco, Fla.App. 1961, 132 So.2d 216. The only purpose a new trial will serve is to permit another jury to view the evidence. I would affirm the judgments.