Bell v. Tarvin, E-323
| Decision Date | 21 April 1964 |
| Docket Number | No. E-323,E-323 |
| Citation | 163 So.2d 300 |
| Parties | Osmond Robert BELL, Jr., Appellant, v. John H. TARVIN, Appellee. |
| Court | Florida District Court of Appeals |
Cox, Grissett, MacLean & Webb, Jacksonville, for appellant.
Dawson, Galant, Maddox & Sulik, Jacksonville, for appellee.
This is an appeal from an order granting plaintiff-appellee's motion for new trial.
As the result of a collision between his automobile and one negligently driven by the defendant-appellant, plaintiff sought damages for permanent injuries to his person, pain and suffering, medical expenses and lost wages, and property damage.
The uncontradicted evidence is to the effect that plaintiff suffered $1,325.58 damages for medical expenses, damages to his automobile, and loss of wages. The jury awarded a total of $2,500.00 damages. The grounds upon which the trial judge granted plaintiff's motion for new trial are: (1) That in view of the undisputed evidence the verdict is so inadequate as to shock the conscience of the court. (2) That in view of the uncontradicted evidence it is obvious that the jury was swayed by prejudice or by other matters outside the record or that the jurors ignored or failed to consider the court's instructions on the matter of damages. (3) That in view of the fact that the uncontradicted evidence disclosed that plaintiff sustained substantial injuries, the court felt it committed error which may have influenced the jury in arriving at its verdict by using the words 'if any' in charging the jury regarding plaintiff's injuries. The sole question on appeal is whether or not the court erred in granting a new trial.
While an order granting a new trial will not be lightly overturned (Russo v. Clark, 147 So.2d 1 [Fla.1962]), a new trial should not be granted unless it is reasonably clear that substantial rights have been violated to the extent that a fair trial was not had. Warner v. Goding, 91 Fla. 260, 107 So. 406 (1926). In Cobb v. Brew, Fla.App., 155 So.2d 814 (1963), this court followed Russo v. Clark, supra, in holding that it is an abuse of discretion to grant a new trial where the verdict finds ample support in the record, no illegal evidence is shown to have gone to the jury, and all that is to be accomplished is to have another jury try the cause.
The plaintiff received in excess of $1,000.00 over the total special damages submitted in evidence. The evidence is undisputed that he had a pre-existing injury and an advanced arthritic condition, which it was proper for the jury to consider in determining the damages to be awarded for bodily injuries, pain and suffering. A medical expert who testified for plaintiff expressed the uncontradicted opinion that plaintiff suffered a rupture of the interarticular fibrocartilage of the knee.
The matter of the credibility of witnesses is peculiarly for the jury to determine. Chomont v. Ward, 103 So.2d 635 (Fla.1958); Seaboard Air Line Railroad Company v. Martin, 56 So.2d 509 (Fla.1952).
In Bailey v. Sympson, 148 So.2d 729 (Fla.App.1963), the jury awarded $620.00 damages and the trial court granted a new trial on the grounds that the verdict was contrary to the evidence, was contrary to the law, and was such as to shock the conscience of the court. On the appeal it was noted that one of the issues before the jury was the estent and effect of plaintiff's injuries. The same issue is involved on the instant appeal. In that case the appellate court said, and we agree:
'If the jury had accepted the testimony of the plaintiff and his physician as to the extent and effect of the injury, a much larger judgment would in all probability have been rendered. * * * it has not been made to appear that the verdict rendered was the result of bias or prejudice, or that the jury was influenced by anything other than the testimony and the charges of the court. * * *'
In Ingle v. Cochran, 151 So.2d 63 (Fla.1963), this court upheld a verdict of $250.00 in a case where the plaintiff suffered abrasions about her face and head, a fracture of the fifth metatarsal bone above the little toe on the left foot, and a laceration above her left eye which left a disfiguring scar, and there was evidence she had been incapacitated for a period of several weeks and had suffered pain from her injuries.
In Freeman v. Bandlow, 143 So.2d 547 (Fla.App.1962), a verdict for $280.00, the exact amount of a doctor's bill...
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