LaPorte v. Associated Independents, Inc., 33167

Decision Date03 April 1964
Docket NumberNo. 33167,33167
Citation1 A.L.R.3d 992,163 So.2d 267
PartiesPhyllis LA PORTE, Petitioner, v. ASSOCIATED INDEPENDENTS, INC., a Florida corporation, Respondent.
CourtFlorida Supreme Court

Morgan, Carratt & O'Connor, Fort Lauderdale, for petitioner.

Gotthardt, Christie & Shepard, Miami, for respondent.

THOMAS, Justice.

An action for damages was brought by the petitioner, then plaintiff, against the defendant, now respondent, based on facts we will presently, briefly relate. The plaintiff, was awarded a verdict of $2000. compensatory damages and $1000. punitive damages. The subsequent judgment was appealed to the District Court of Appeal, Second District, and there reversed for reconsideration not of 'the issue of liability, but for determination only of compensatory and punitive damages.'

The appellate court observed that appellant was contending error had been committed by the trial judge when he charged the jury that the plaintiff could recover for alleged mental suffering. The question here is simplified by the apparent concession on the part of the respondent that under the evidence the jury could believe the petitioner was entitled to recover both compensatory and punitive damages, which have been allowed, however, the respondent complains that the element of mental suffering was injected improperly by the judge's instruction.

The respondent is a corporation engaged in the business of collecting garbage. Among its customers was the petitioner. Early one morning, while the petitioner was occupied in the preparation of breakfast, a garbage collector came for the refuse. The petitioner had tethered her pet, a miniature dachshund, Heidi, outside the house and beyond reach of the garbage can. Heidi was pedigreed and had been purchased two years before. She saw the garbage man empty the can and hurl it in the direction of the dog. Upon hearing her pet yelp, the petitioner went outside to find Heidi injured. The collector laughed and left. Heidi expired from the blow.

In the afternoon petitioner consulted a physician who later testified that she was upset to the point of marked hysteria and in such a plight that she could not recount the experience coherently. The doctor testified also that he had been treating her for nervousness for the past two years. But there is no need to pursue the matter of the effect of Heidi's demise upon her nervous system.

The narrow point for decision is whether or not the element of mental suffering was properly submitted to the jury for their consideration in assessing damages. It is humanly impossible, of course, to extract from the record whether or not the jury was influenced by that feature or, if so, to what extent. In these circumstances if no such factor should have been considered the opinion of the District Court of Appeal should not be disturbed so that upon re-trial the instruction on the point might be eliminated. If such damages are recoverable then the judgment of the trial court should prevail.

The petition for review here was based on an alleged conflict between the decision of the District Court of Appeal in the instant case and decisions of the Supreme Court in Kirksey v. Jernigan, 45 So.2d 188, 17 A.L.R.2d 766; Crane v. Loftin, 70 So.2d 574, and Slocum v. Food Fair Stores of Florida, 100 So.2d 396.

In the first of these cases it was shown that an undertaker had possessed and embalmed the body of a child without authority of the parent and had refused to surrender the body until a fee for the embalming was paid. The action of the parent for compensatory and punitive damages was dismissed in the trial court. The Supreme Court reversed the judgment and undertook to distinguish cases involving mental suffering from intentional or malicious torts and those in which mental suffering may have resulted from negligent acts. This court acknowledged its commitment to the rule that there could be no recovery for mental pain unconnected with physical hurt in an action arising from 'negligent breach of a...

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37 cases
  • Anne Arundel Cnty. v. Reeves
    • United States
    • Court of Special Appeals of Maryland
    • June 7, 2021
    ...of the pet provides an element of damage for which the owner should recover, irrespective of the value of the animal[.]" 163 So. 2d 267, 269 (Fla. 1964). The plaintiff saw a garbage collector throw a trash can at her dog, Heidi. Id. at 268. The garbage collector laughed and drove away. Id. ......
  • Plotnik v. Meihaus
    • United States
    • California Court of Appeals Court of Appeals
    • August 31, 2012
    ...can support a claim for, and be considered a factor in measuring a person's emotional distress damages”]; La Porte v. Associated Independents, Inc. (Fla.1964) 163 So.2d 267, 269 [garbage collector hurled can at tethered dog, killing it; “the affection of a master for his dog is a very real ......
  • Dorsey v. Honda Motor Co. Ltd.
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    • U.S. Court of Appeals — Fifth Circuit
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    ...National Bank of Jacksonville, 266 So.2d 657 (Fla.1972) (bank wrongfully repossessed plaintiff's automobile); La Porte v. Associated Independents, Inc., 163 So.2d 267 (Fla.1964) (employee threw garbage can at plaintiff's dog, killing it); Ocean Mile Galleries, Inc. v. Huguenor, 351 So.2d 10......
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    • Arizona Court of Appeals
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    ...willful, malicious, or reckless conduct. Richardson v. Fairbanks North Star Borough, 705 P.2d 454 (Alaska 1985); La Porte v. Assoc. Indep., Inc., 163 So.2d 267 (Fla. 1964); Gill v. Brown, 107 Idaho 1137, 695 P.2d 1276 (Ct.App.1985); Burgess v. Taylor, 44 S.W.3d 806 (Ky.Ct.App.2001). Whether......
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    • FNREL - Special Institute Natural Resources and Environmental Litigation (FNREL)
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    ...involving intentional or bad faith injury, emotional distress damages have been allowed. See LaPorte v. Associated Independents, Inc., 163 So. 2d 267 (Fla. 1964); Annot. 28 A.L.R.2d 1070, 1089 (1953). (d) Punitive Damages Punitive damages have been awarded in cases involving intentional or ......
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    ...to stop the attack of the two pit bulls, chased and fought the dogs. 28 After scaring 18 E.g. , La Porte v. Associated Indeps., Inc., 163 So. 2d 267, 269 (Fla. 1964); Womack v. Von Rardon, 135 P.3d 542, 546 (Wash. Ct. App. 2006) (“For the first time in Washington . . . malicious injury to a......
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    ...App. 1985); Corso v. Crawford Dog & Cat Hosp., Inc. , 415 N.Y.S.2d 182, 183 (N.Y. Civ. Ct. 1979); La Porte v. Associated Indeps., Inc., 163 So. 2d 267, 267-69 (Fla. 1964). 97. See generally McDougall , 48 A.3d at 322; Goldberg, supra note 2; Schwartz & Laird, supra note 2. 258 What Can Anim......
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    • Mercer University School of Law Mercer Law Reviews No. 66-4, June 2015
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    ...he can foresee would cause emotional distress due to a particular sensitivity of the plaintiff. See La Porte v. Associated Indep., Inc., 163 So. 2d 267, 268 (Fla. 1964) (considering the plaintiffs history of nervousness); Nickerson v. Hodges, 84 So. 37, 38-39 (La. 1920); Kircher, supra note......
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