Albert v. Miami Transit Co.

• Decision Date: 22 February 1944
• Court: Florida Supreme Court
• Parties: ALBERT et al. v. MIAMI TRANSIT CO., Inc.

17 So.2d 89

154 Fla. 186

ALBERT et al. v. MIAMI TRANSIT CO., Inc.

Florida Supreme Court

February 22, 1944

Appeal from Circuit Court, Dade County; Marshall C Wiseheart, judge.

Perry A Nichols and L. J. Cushman, both of Miami, for appellants.

Worley Gautier & Cannon, of Miami, for appellee.

TERRELL, Justice.

The appellant, a lady sixty-two years of age, was on January 6, 1943, employed at a laundry in Miami. On the latter date, she boarded a bus of appellee at 6 A. M.

for the purpose of going to work. She tendered the bus driver a five dollar bill, requested one dollar's worth of bus tokens and the balance in change. The bus driver became angry, addressed appellant very rudely, told her he had no change and that she would have to get off the bus. Appellant then rummaged through her hand bag, found some change, paid the fare, and took her seat on the bus. The bus driver continued his tirade, admonishing appellant that 'anyone is a fool that will get on the bus at this hour of the morning with nothing but a five dollar bill.'

Appellant explained to the driver that she had worked late the day before, had no chance to secure change and that she hoped he 'would be caught out in the ocean with nothing but a five dollar bill'. To this sally, the bus driver shouted, 'Aw old woman, why don't you wish in one hand and spit in the other and see which one fills up quickest.' Appellant responded that if she were a man and had him off the bus, she would thrash the devil out of him. The driver stopped the bus abruptly and said, 'I'll make a damn liar out of you right now', and commanded appellant to get off the bus. As appellant stepped off the bus in obedience to this command the driver slapped her face, broke her glasses, cut her nose, and gave her a general mussing up.

Several men jumped off the bus to back up appellant, but after some verbal exchanges, a general fracas was abandoned, everyone got aboard and the bus proceeded on its course, but the driver continued to upbraid appellant for getting on the bus with nothing but a five dollar bill. When he had driven about two blocks, the bus collided with an automobile throwing the plaintiff and other passengers from their seats into the aisle against the seats and on top of each other, bruising appellant and other passengers severely.

Appellant as plaintiff brought this action against appellee as defendant claiming both compensatory and punitive damages. The trial resulted in a verdict and final judgment for $4500 in favor of the plaintiff. A motion for new trial was made and on consideration thereof it was granted 'unless the plaintiff shall, within five days from date hereof, enter a remittitur of the verdict and judgment in the sum of $3000.' This appeal is from the order granting the new trial. At the argument the question was raised as to whether or not the instant appeal was taken from a final judgment as the rules require. We treat it as having been taken from the final judgment as amended.

Appellant contends that the judgment should be reversed because this is a common law action involving solely a claim for damages for personal injuries, that no question was involved by the probative force of the evidence, of which the jury was the sole judge and that the trial judge was without authority to pit his judgment against that of the jury which he undertook to do in granting the new trial.

Against the contention of appellant, appellee contends that the requirement vel non of a remittitur is at all times within the sound discretion of the trial judge and unless there is shown some abuse of that discretion, his judgment should not be disturbed.

In Seaver v Stratton, 133 Fla. 183, 183 So. 335, this Court approved the rule that in cases where nothing is involved but the sufficiency of and the probative force of the evidence, the trial court is, under no circumstances, warranted in pitting his judgment...