Ake v. Birnbaum
| Decision Date | 20 July 1945 |
| Citation | 156 Fla. 735,25 So.2d 213 |
| Parties | AKE et ux. v. BIRNBAUM. |
| Court | Florida Supreme Court |
On Rehearing Feb. 22, 1946.
Appeal from Circuit Court, Volusia County; R. H. Rowe Judge.
Paul W Harvey, of Daytona Beach, and Harry T. Gray and Marks, Marks Holt, Gray & Yates, all of Jacksonville, for appellants.
Hull, Landis, Graham & French and J. Compton French, all of De Land, and Howell, Roberts & Duncan, of Cleveland, Ohio, for appellee.
This is a suit by an executrix to recover in her representative capacity for damages accruing to her decedent by reason of the loss and injury to the estate by reason of the gross negligence of the defendant in the operation of an automobile in which the decedent was riding as a guest.
Appellant poses six questions based on assignments of error.
The first question challenges the sufficiency of the evidence to establish gross negligence on the part of the defendant.
To delineate the testimony of the several witnesses here can serve no useful purpose. It is sufficient to say that there is substantial evidence shown by the record to establish gross negligence on authority of our opinion and judgment in Gittleman v. Dixon et al., 148 Fla. 583, 4 So.2d 859; Cormier v. Williams, 148 Fla. 201, 4 So.2d 525; Wharton v. Day, 151 Fla. 722, 10 So.2d 417.
The second question is: 'When in a suit for personal injuries under the Guest Statute resulting from automobile accident this Court has held the accident was not the result of gross negligence, is not that holding stare decisis in another suit involving the same accident and the same state of facts?'
This question has reference to our opinion and judgment in the case of Kozak et al. v. Ake et al., 147 Fla. 508, 3 So.2d 120. In that case the same accident was involved and the verdict of the jury was for the defendant. This court approved the verdict and judgment for the defendant on the record in that case. However, an examination of the record of testimony in that case and the record of the testimony in the instant case reflects that the records in this regard are not identical and, therefore, what was said in that other case does not control in this case. The record of the evidence in this case is much stronger in behalf of the plaintiff and we cannot say that the evidence so preponderated in favor of the defendant or that the plaintiff so failed to prove the allegations of the declaration that the verdict of the jury approved by the trial court in denial of motion for a new trial should be set aside, especially in view of the provision in our guest statute, 320.59, Fla.Stats. 1941, same F.S.A., that, 'provided, that the question or issue of negligence, gross negligence, and willful or wanton misconduct, and the question of proximate cause, and the issue or question of assumed risk, shall in all such cases be solely for the jury.' See Nelson v. McMillan, 151 Fla. 847, 10 So.2d 565.
The third question challenges the propriety of admitting in evidence a duly authenticated document from the State of Ohio purporting to be letters appointing the plaintiff as executrix of the estate of the deceased. The objection was upon the ground that the document did not have attached thereto a copy of the will of deceased. We must hold that the document introduced was sufficient to show that the plaintiff was the duly appointed executrix of the will and, therefore, showed prima facie authority to maintain suit.
The fourth question challenges the action of the Court in refusing to give a requested charge. We find no error in the refusing of the giving of this charge, which was in the following language: 'Whether the plaintiffs gave Mittie Ake $1 each as their proportional share of the expenses of the trip to pay for gasoline and oil used in the automobile they were traveling in, they remained the guests of Mittie Ake and neither of them may recover damages unless they establish gross negligence of the owner or operator of the car which proximately resulted in the injuries and damages sustained.' This is true because the Court had fully and clearly charged the jury in effect that for the plaintiff to recover she must establish by evidence gross negligence on the part of defendant.
It may be that upon proper motion the court should have excluded the evidence tending to show the payment of the expenses of the trip but the admitting of this evidence was not made a ground of assignment of errors and we think that if its admittance was error it was not harmful error in the light of the pleadings and the charge of the court.
The fifth question is as follows: 'Did not the Court err on the morning the trial commenced in permitting an amendment to the declaration which changed completely the claim relied upon; and having permitted the amendment, should he not have permitted the defendants to file appropriate pleas of the statute of limitations?' This question appears to be based on an erroneous premise. It is contended that the amended declaration submitted on the date of the trial, to-wit, on May 17, 1944, by striking out the word 'died' and inserting in lieu thereof the following: 'The said Mary Birnbaum suffered severe physical pain, mental anguish and nervous shock and was confined in a hospital for a long period of time and incurred large expenses for hospital, medical and nurses care prior to her death' constituted the stating of a new cause of action not theretofore pleaded and was barred by the statute of limitations.
The record shows that on December 6, 1939, the plaintiff had, by leave of court, filed an amended declaration in which it was alleged: 'and that by reason of said injuries and approximate result thereof, the said Mary Birnbaum suffered severe physical pain, mental anguish and nervous shock and was confined in a hospital for a long period of time and incurred large expense for hospital, medical and nurses care prior to her death, towit on the 26th day of November, 1938'. And further alleged: 'That the said Mary Birnbaum, deceased, prior to the time of her death, had a cause of action against the defendants herein for damages caused by virtue of the gross negligence of the defendant Mittie Ake heretofore referred to and that such cause of action has survived and is now enforceable by plaintiff as Executrix of the estate of said deceased'.
So the pleadings upon the face showed that the plea of the statute of limitations was not applicable and there was no error in the denying the defendant of the privilege of filing such plea.
The sixth question challenges the verdict as being excessive. Sec. 45.11, Fla. Statutes, same F.S.A., is as follows:
So it is that all actions except for assault and battery, slander, false imprisonment and malicious prosecution enforceable by a claimant prior to the death of such claimant survive and may be enforced by the legal representative of the deceased.
We have held, however, in Florida East Coast Ry. Co. v. Hayes, 67 Fla. 101, 64 So. 504, 7 A.L.R. 1310, See also Florida East Coast Ry. Co. v. Roberts, 111 Fla. 278, 149 So. 631, 94 A.L.R. 376; Miami Dairy Farm, Inc. v. Tinsley, 115 Fla. 650, 654, 155 So. 850; Coon v. Atlantic Coast Line R. Co., 125 Fla. 240, 171 So. 207; Id., 125 Fla. 490, 171 So. 207; Potts et al. v. Mulligan, 141 Fla. 685, 193 So. 767. 15 Am.Juris. Secs. 99, 100, 101.
The record shows that the injury occurred on the 16th day of November, 1938, and it further shows that Mary Birnbaum died on the 26th day of November of the same year. Therefore, she lived and suffered only ten days. Her hospital expense was $390.67 and the other expenses were $658, making a total of $1,048.67. The verdict was for $7,500 which left $6,451.33 apparently assessed by the jury for mental and physical pain and suffering experienced by Mary Birnbaum as a result of the injury and prior to her death. To this extent the verdict was excessive.
This could not be a survival action under sections 45.11 and 45.12, Fla. Statutes 1941, same F.S.A., because there was no action pending at the time of the death of the injured person.
Therefore, if the plaintiff shall enter a remittitur in the sum of $6,451.33, the judgment will stand affirmed in the sum of $1,048.67 as of the date thereof; otherwise, the judgment shall stand reversed and a new trial awarded.
It is so ordered.
I am in accord with the views expressed by Mr. Justice Buford except as to question No. 6 posed for adjudication, viz., Is not a verdict for $7,500 excessive when no claim is made for wrongful death and the only damages claimed are for expenses and pain and suffering during a period of approximately one week?
The issues were presented in the lower court under the first count of plaintiffs' reamended declaration and a plea of not guilty...
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...of as creating a 'new cause of action.' See Turon v. J. & L. Construction Co., 8 N.J. 543, 556, 86 A.2d 192, 198; Ake v. Birnbaum, 156 Fla. 735, 751, 25 So.2d 213, 215, 216;5 cf. Seward v. The Vera Cruz, 10 A.C. 59, 67. And so they do, in the sense that they give remedies where frequently n......
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