Atlantic Coast Line R. Co. v. Braz

• Decision Date: 25 January 1966
• Docket Number: Nos. 64-1057,64-1058,s. 64-1057
• Citation: 182 So.2d 491
• Parties: ATLANTIC COAST LINE RAILROAD COMPANY and Seaboard Air Line Railroad Company, Appellants, v. Bernard BRAZ, Appellee.
• Court: Florida District Court of Appeals

Page 491

182 So.2d 491

ATLANTIC COAST LINE RAILROAD COMPANY and Seaboard Air Line Railroad Company, Appellants, v. Bernard BRAZ, Appellee.

Nos. 64-1057, 64-1058.

District Court of Appeal of Florida, Third District.

Jan. 25, 1966.

Rehearing Denied Feb. 22, 1966.

Dixon, DeJarnette, Bradford, Williams, McKay & Kimbrell, Miami, for appellants.

Nichols, Gaither, Beckham, Colson & Spence; Alan R. Schwartz, Miami, for appellee.

Before CARROLL, BARKDULL and SWANN, JJ.

PER CURIAM.

Atlantic Coast Line Railroad Company and Seaboard Air Line Railroad Company, the defendants below, appeal the final judgments in a wrongful death action entered in favor of the plaintiff, Bernard Braz.

On October 29, 1963 an automobile driven by the plaintiff's twenty-six year old wife was involved in a collision at a railroad crossing with a passenger train of the Atlantic Coast Line Railroad Company, being operated over Seaboard Air Line Railroad Company tracks by a Seaboard crew. The plaintiff's wife and nineteenmonth old daughter, who was also in the automobile, were killed instantly. The plaintiff husband brought two separate actions against the defendant railroads to recover damages for the wrongful deaths of his wife and daughter.

The defendants denied negligence and pleaded contributory negligence as a bar or in diminishment of damages under the comparative negligence statute, Section 768.06, Florida Statutes, F.S.A. The cases were consolidated for trial and resulted in verdicts of $185,000.00 for the death of the wife and $40,000.00 for the death of the child. Motions for a new trial were denied and this appeal was properly filed.

While this appeal was pending, the Supreme Court of Florida declared the comparative negligence statute unconstitutional in the case of Georgia Southern & Florida Ry. Co. v. Seven-Up Bott. Co., Fla.1965, 175 So.2d 39. After the briefs had been filed, we permitted the filing of additional briefs on the question of whether the decision and opinion in Georgia Southern & Florida Ry. Co., supra, was controlling or applicable in this case.

The defendant's motions for new trial in the trial court and their assignments of error on appeal did not assert that the comparative negligence statute was invalid or unconstitutional. This case is therefore governed by the recent decision of this court in Florida East Coast Railway Company v. Rouse, Fla.App.1965, 178 So .2d 882. There the court specifically rejected the 'fundamental error' argument, as advanced herein, and held that since the constitutionality of the statute was not properly before the trial court, it could not be raised for the first time on appeal and the appellants could not successfully complain of error for which they were responsible or had invited. The facts of Rouse, supra, are essentially the same as those here and the decision of Georgia Southern & Florida Ry. Co., supra, is therefor inapplicable.

We turn to the consideration of the defendants' points on appeal in the case sub judice alleging error, inter alia, as follows: (1) in permitting into evidence testimony from a Dr. Lassiter concering the 'value' of the deceased wife to the husband, in that it constitutes argument to the jury from the witness stand; (2) in permitting into evidence testimony as to the amount of money necessary to replace the wife's clerical service to the husband's corporation; (3) in not granting a mistrial because a newspaper article concerning Dr. Lassiter's testinony was prejudicial, in flammatory and misleading, and came to the attention of at least one juror; (4) in failing to charge the jury that an award to the plaintiff would not be subject to income tax and that the jury should not consider such taxes in fixing the amount of such an award; (5) that the verdict of $185,000.00 for the twenty-six year old deceased wife and $40,000.00 for the ninetee-month old deceased child were so excessive as to indicate bias, passion or prejudice so as to shock the judicial conscience; and (6) in not allowing an amendment to the pleadings to show a defense of contributory and/or comparative negligence as to the plaintiff's claim for the death of his child.

The question advanced by the defendants as to whether Dr. Lassiter's testimony constituted an invasion of the province of the jury has been previously considered and decided in the case of Millar v. Tropical Gables Corp., Fla.App.1958, 99 So.2d 589. There the judgment of the trial court was reversed when it excluded the testimony of experts based on the ground that the testimony would be an invasion of the province of the jury and would require an opinion as to the ultimate fact at issue between the parties. The court, in reversing, stated:

* * *

* * *

'There is considerable authority for the lower court's ruling in excluding the testimony of the two experts as an invasion of the province of the jury, but we feel that the present trend of authority is to make no distinction between evidential and ultimate facts as subjects of expert opinion. See North v. State, Fla.1952, 65 So.2d 77 at pages 87, 88; 20 Am.Jur., Evidence, § 782, p. 654. It is still the sole province of the jury to accept or reject the testimony of the expert witness, regardless of how respectable and qualified that witness may be, and the jury is in no wise bound by the expert's conclusions, any more than it is bound by the testimony of any other witness. This theory has been cited with approval and further explained in II Wigmore on Evidence, 3d Ed., § 673, p. 795.'

* * *

* * *

The defendants further assert that Dr. Lassiter's testimony as to the 'value' of a deceased wife to a husband was not 'competent evidence' to go to the jury on the issue of damages in a wrongful death case. There appears to be no case in Florida which is directly applicable; however, the cases of Lithgow v. Hamilton, Fla.1954, 69 So.2d 776, and Smith v. Whidden, Fla.1956, 87 So.2d 42, did establish that 'persons' who qualify as experts in the employment service field may testify as to the proper value of the services of which the husband is deprived. In the case sub judice, Mr. Robert M. Douglas, the office manager of the Florida State Employment Service in West Palm Beach, testified as to the number of persons necessary to replace the deceased mother and their prospective salaries.

Dr. Lassiter had received his Doctor of Philosophy degree from the University of Florida in 1957 and had been teaching since 1955. His particular field was economics, agricultural economics and statistics, giving particular study as to the 'value' of a wife and mother to a household. He had been retained as consultant to various outside companies, testified before state administrative boards, authored and published various articles in this particular field, and had previously testified in other courts on this topic.

There is no doubt that the persons who testified on this issue were fully qualified in their field, and it is out opinion that the trial court did not abuse its discretion in permitting their testimony into evidence. We approve the rationale expressed in Krohne v. Orlando Farming Corporation, Fla.App.1958, 102 So.2d 399 on page 401, concerning the allowance of expert testimony, wherein it was stated:

* * *

* * *

'The trial court has, in the first instance, a responsibility of allowing or disallowing the testimony of an expert and he also has the responsibility present to determine not only the qualifications, but also as to the range of subjects regarding which he can testify. * * *'

* * *

* * *

"* * * the qualifications of a witness to give expert opinion presents a preliminary question of fact to be determined at the trial by the presiding justice, and will not, in the absence of abuse of discretion, be reviewed in this court * * *"

* * *

* * *

After Dr. Lassiter had testified, an article appeared in a local newspaper concerning his testimony in this case and in a prior case. The article may have contained some inaccurate, or misleading information, but had some to the attention of only one of the jurors . The day after the publication appeared the defendants moved for a mistrial because of its publication. The trial judge reserved ruling on the motion until the conclusion of the case. The record reflects that the trial court interrogated the jurors concerning any prejudicial effect of the article upon them, and that the trial court determined that prejudicial error, to warrant a mistrial, had not been shown.

In order to obtain a reversal on this point the defendants must show that they have been prejudiced by the publication and that the jurors could not render a fair and impartial verdict after having been exposed to prejudicial matter. Since no prejudicial error has been shown as a result of the newspaper article, we do not find error in this regard. See United States v. Pisano, 7 Cir., 1951, 193 F.2d 355; Reining v. United States, 5 Cir., 1948, 167 F.2d 362; 32 Fla.Jur. Trial § 230; 5 U. of Fla.L.Rev.432; Annot. 31 A.L.R .2d 417.

Another of the defendants' points on appeal is based on the refusal of the trial court to instruct the jury that any award to the plaintiff would not be subject to income tax and that the jury should not consider such taxes in fixing the amount of any award. As authority they rely on Poirier v. Shireman, Fla.App.1961, 129 So.2d 439, and Stager v. Florida East Coast Railway Company, Fla.App .1964, 163 So.2d 15. In opposition thereto, the plaintiff refers us to Rhodes, Inc. v. Knowles, Fla.1957, 99 So.2d 302, and Florida East Coast Railway Company v. Schweida, Fla.App.1963, 151 So.2d 665.

We have carefully examined the last two cases cited, and find that Rhodes, Inc., supra, is of little value, as it is a per curiam decision of affirmance by the Supreme Court of Florida, without opinion. The Schweida case, supra, does not contain any reference to an instruction concerning income tax. It may well be that these matters were...