Bould v. Touchette

Decision Date28 July 1977
Docket NumberNo. 48935,48935
PartiesDorthy BOULD and Edward Simonson, Jr., as Administrator of the Estates of Edward and Alice Simonson, both Deceased, Petitioners, v. Mitchell C. TOUCHETTE, U. S. Concrete Pipe Company, a Florida Corporation, and Hartford Accident & Indemnity Company, Respondents.
CourtFlorida Supreme Court

Edward A. Perse of Horton, Perse & Ginsberg and Brumer, Moss, Cohen & Rodgers, Miami, for petitioners.

Michael B. Davis of Walton, Lantaff, Schroeder & Carson, West Palm Beach, for Mitchell C. Touchette, Richard A. Sherman of Wicker, Smith, Blomzvist, Davant, McMath, Tautan & O'Hara, Miami, for U. S. Concrete Pipe Company.

Sam Daniels, Miami, for Hartford Accident & Indemnity Co.

ADKINS, Acting Chief Justice.

By petition for certiorari we have for review a decision of the District Court of Appeal, Fourth District (Touchette v. Bould, 324 So.2d 707) which allegedly conflicts with decisions of this Court and the District Court of Appeal on the same point of law. The District Court held that punitive damages must bear some reasonable, albeit imprecise, relation to the actual, or compensatory, damages, citing International Union of Operating Engineers, Local No. 675 v. Lassitter, 325 So.2d 408 (Fla.4th DCA 1975). We accepted jurisdiction of Lassitter as being in conflict with Levine v. Knowles, 197 So.2d 329 (Fla.3d DCA 1967), and Hutchinson v. Lott, 110 So.2d 442 (Fla.1st DCA 1959). We have jurisdiction. Article V, Section 3(b)(3), Florida Constitution.

Having taken jurisdiction because of a conflict as to one question of law, U. S. Concrete Pipe Company says we should consider no other questions involved in the appeal before the District Court, as these questions were not raised in Bould's petition for certiorari seeking jurisdiction. This contention is without merit. If conflict appears and this Court acquires jurisdiction, we then proceed to consider the entire cause on the merits. As stated in this Court in Tyus v. Apalachicola Northern Railroad Company, 130 So.2d 580 (Fla.1961):

"Since we have concluded that, on the face of the subject opinion of the District Court, it appears there can be no doubt about the question of direct conflict with many of our prior decisions, as well as the decision of the District Court of Appeal, . . . it becomes our duty and responsibility to consider the case on its merits and decide the points passed upon by the District Court which were raised by appropriate assignments of error as completely as though such case had come originally to this court on appeal." At 585.

See also Brown v. State, 206 So.2d 377 (Fla.1968), and D'Agostino v. State, 310 So.2d 12 (Fla.1975).

Petitioners were plaintiffs in the trial court in consolidated wrongful death and survivorship actions prosecuted under the Florida Wrongful Death Act (Sections 768.01-768.03, Florida Statutes (1970), and the former survivorship statute, Section 46.021, Florida Statutes (1970)). The accident causing the death of Edward Simonson and Alice Simonson, his wife, occurred on January 15, 1971. So the present wrongful death statute is inapplicable here. McKibben v. Mallory, 293 So.2d 48 (Fla.1974). The respondents were defendants in the trial court.

For clarity, the petitioners Dorothy Bould and Edward Simonson, Jr., will be referred to as "Bould" and "Simonson," U. S. Concrete Pipe Company as "Concrete Pipe," Mitchell C. Touchette as "Touchette," and Hartford Accident and Indemnity Company as "Hartford."

Sixty-six year old Edward Simonson and his sixty-four year old wife, Alice, were returning to Buffalo, New York, in a 1967 Ford Sedan, having concluded a retirement vacation in South Florida. Shortly before noon, on a clear day, they were forced to bring their vehicle to a stop at the end of a long line of traffic, as the road was under construction and traffic was being regulated by a flagman. The road was straight, flat and level for more than a mile before the actual construction site.

A pickup truck stopped back of the vehicle of the Simonsons. Shortly thereafter a large flat-bed semi-trailer truck bore down upon the stopped vehicles. The occupant of the pickup truck attempted to signal but, realizing that the semi-trailer truck would not be able to stop, attempted to turn his wheels. Without reducing speed, sounding a warning, or applying brakes, the operator of the semi-trailer truck struck the rear of the pickup truck, tossing it aside, and, continuing over the Simonson's vehicle, flattened it. The semi-trailer truck did not come to a stop until it had run through two other vehicles and collided with another large truck. The semi-trailer truck was being operated by Touchette in the course and scope of his employment by Concrete Pipe.

The cause of action for wrongful death accrued to Bould as the surviving natural mother of Alice Simonson and dependent upon both decedents for her support. Bould, the wrongful death plaintiff, received $100,000 compensatory damages against Touchette and Concrete Pipe.

Simonson, an adult son of decedents, qualified as personal representative of each estate and was plaintiff in the survivorship action, receiving an award of $65,000 compensatory damages against Concrete Pipe and Touchette, $800,000 punitive damages against Concrete Pipe, and $5,000 punitive damages against Touchette.

A motion for new trial was denied by the trial court. Upon appeal the District Court held that the verdict and judgment in each case was grossly excessive and contrary to the law and evidence. The District Court ordered a new trial "on all issues."

The principles of law to be applied in considering excessiveness of damages are stated in Talcott v. Holl, 224 So.2d 420 (Fla.3d DCA 1969), as follows:

"A party who assails the amount of a verdict as being excessive, has the burden of showing it is unsupported by the evidence, or that the jury was influenced by passion or prejudice. Breeding's Dania Drug Co. v. Runyon, 147 Fla. 123, 2 So.2d 376, 377; Florida Power & Light Co. v. Robinson, Fla.1953, 68 So.2d 406, 415. A verdict which has been approved by the trial court as to amount should not be disturbed on appeal if it has a reasonable relation to the damages proven, in the absence of a showing that it imposes a hardship out of proportion to the injury suffered. Margaret Ann Super Markets, Inc. v. Scholl, 159 Fla. 748, 34 So.2d 238; Florida Power & Light Co. v. Robinson, supra.

"In Sproule v. Nelson, Fla.1955, 81 So.2d 478, 481, 76 A.L.R.2d 1066, the Supreme Court, speaking through the late Justice Glenn Terrell, said:

" 'There is an element of speculation in most personal injury verdicts, but this is a matter for jury discretion. The court may review their discretion but not the amount awarded unless shown to be clearly arbitrary. * * *'

"The determination of the amount of such damages is peculiarly within the province of the jury. Higbee v. Dorigo, Fla.1953, 66 So.2d 684; Merwin v. Kellems, Fla.1955, 78 So.2d 865; Sproule v. Nelson, supra.

"In Upton v. Hutchison, Fla.1950, 46 So.2d 20, 21, the Supreme Court said: 'It is well settled that the verdict of a jury will not be disturbed by this court on appeal where there is ample substantial evidence to support such verdict. Nor will this court substitute its judgment for that of the jury as to the amount of damages to which the plaintiff is entitled, unless the amount found is so excessive as to indicate that the jury was influenced by passion, prejudice, corruption, or other improper motive. Loftin v. Dagley, 152 Fla. 831, 13 So.2d 311; Florida Motor Lines Corp. v. Shontz, 159 Fla. 518, 32 So.2d 248.' " At 422.

In determining whether a verdict is excessive, vague expressions by the courts about "conscience-shocking amounts" do not furnish the enlightenment that the public should expect from judges about how they arrive at their decisions. The problem of determining whether a verdict is excessive is not so subjective as to prevent the formulation of standards to be used in the exercise of the court's power. Nor should judges have the unfettered latitude for decision that might be afforded by the imprecision of the rules that they themselves formulated.

Where recovery is sought for a personal tort, or where punitive damages are allowed, we cannot apply fixed rules to a given set of facts and say that a verdict is for more than would be allowable under a correct computation. In tort cases damages are to be measured by the jury's discretion. The court should never declare a verdict excessive merely because it is above the amount which the court itself considers the jury should have allowed. The verdict should not be disturbed unless it is so inordinately large as obviously to exceed the maximum limit of a reasonable range within which the jury may properly operate. Lassitter v. International Union of Operating Engineers, 349 So.2d 622, opin. filed May 26, 1977, approving the reasoning in Gorsalitz v. Olin Mathieson Chemical Corp., 429 F.2d 1033 (5th Cir. 1970).

We first consider the award of $100,000 in the wrongful death case. Bould was entitled to recover pecuniary loss of support as damages and was not entitled to recover for mental anxiety and suffering. The single element of damage was the pecuniary value of the loss of support suffered by Bould. This does not mean that the recovery is limited to a present value of anticipated support which must be measured to a mathematical certainty. The rule is discussed in Cudahy Packing Co. v. Ellis, 105 Fla. 186, 140 So. 918 (1932):

"The weight of authority supports the rule that more than ordinary discretion may be allowed the jury in assessing damages in actions for wrongful death. They are not limited to a consideration of the age and probable life expectancy of the dependents, neither are they limited to a consideration of the age, earning power, and probable life expectancy of the deceased. They may consider the probable...

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