Bowser v. Harder
| Decision Date | 27 November 1957 |
| Docket Number | No. 116,116 |
| Parties | Lawrence BOWSER, Appellant, v. Charles HARDER and Mary Kathleen Harder, Appellees. |
| Court | Florida District Court of Appeals |
Enwright & Esteva, John G. Enwright, Mann, Harrison, Roney, Mann & Masterson, Baya M. Harrison, Jr., St. Petersburg, for appellant.
Shackleford, Farrior, Shannon & Stallings, R. W. Shackelford, George T. Shannon, Thomas C. McDonald, Jr., Tampa, for appellees.
Appeal from a final judgment dated January 28, 1955, in an action at law by Charles Harder and Mary Kathleen Harder, husband and wife, against Lawrence Bowser, for damages resulting from claimed negligence of defendant which allegedly caused an intersectional automobile accident, said judgment being based on a verdict for $17,500 damages to Mary Kathleen Harder and for 'None' damages to Charles Harder. Appellant was defendant below and appellees were plaintiffs, the parties being referred to herein as they stood before the trial court.
The jury brought in the following verdict:
The defendant moved for a new trial on several grounds, among which were that the verdict was inconsistent and improper, and that contributory negligence was shown as a matter of law. The trial judge, in his opinion denying defendant's motion for new trial, said:
'It is contended by defendant that the form of the verdict rendered indicates that the Jury found that the Plaintiff, Charles Harder, was guilty of contributory negligence as evidenced by the Jury's failure to award him any damages. Defendant strongly relies upon the case of Atlantic Coast Line Railway Co. v. Price, [Fla.], 46 So.2d 481, contending that the Price case is 'almost exactly parallel' to the instant case as to the form of verdict and attendant circumstances. * * *
'* * * It is the opinion of this Court that the present case is not controlled by the principles set forth in the Price case because of an entirely different factual situation. In the Price case it was possible for the jury to render separate verdicts for individual plaintiffs, whom the Jury thought should prevail, and against any plaintiffs whom the jury found should not prevail. This situation does not exist in the present case. Plaintiff and his wife were acting in concert, and any contributory negligence of the Plaintiff's husband as driver of the car was imputable to the Plaintiff's wife as owner of the automobile, and the Jury was so instructed.
'The evidence in the instant case shows that Plaintiff, Charles Harder, sustained only nominal damages with no permanent injuries, a hospital bill of three dollars twenty-five cents ($3.25) and medical expenses for himself of one hundred twenty-five dollars ($125.00). It is contended by Plaintiff that since the Plaintiff husband sustained only damages nominal in nature by comparison of those sustained by his wife that he should not be allowed any recovery and that his wife should be compensated in the sum of $17,500.00.
'It is the opinion of this Court that the form of verdict rendered in the present case contains two significant statements: First, the general finding for the plaintiffs, which under the facts of the Price case were held to be 'mere surplusage', inasmuch as separate awards were possible, and, second, the particular finding for the plaintiff, Charles Harder, he being named in the verdict, which was not done in the Price case, together with the positive finding against the defendant.
'For the court to say that the verdict of the Jury was inconsistent and improper because of the failure to award damages to the plaintiff, Charles Harder, despite the Jury's statement in plain language that they found for the plaintiff, Charles Harder, by name, and against the defendant would in this Court's opinion open the door to a substitution of the Court's judgment based upon little more than speculation and conjecture for that of the Jury who heard and considered the evidence.'
A jury's verdict carries with it a presumption of regularity just as a court's order is presumed to be correct. See Florida Power and Light Co. v. Hargrove, 1948, 160 Fla. 405, 35 So.2d 1; Putnam Lumber Co. v. Berry, 1941, 146 Fla. 595, 2 So.2d 133.
In the case of Atlantic Coast Line R. Co. v. Price, Fla.1950, 46 So.2d 481, referred to in the trial court's opinion and also referred to in the briefs of each of the parties in this suit, the jury rendered the following verdict:
'We the jury, find for the plaintiffs, and assess their damages as follows:
'For A. E. Price $0000
'For Olive Price $1250.
'For Margery Price $300.
'For Tommy Price $150.
'So say we all.'
We do not consider the Price case on point in this case, except for the determination of the Supreme Court that where the jury filled in definite amounts for three of the plaintiffs, but placed zeros opposite the name of the plaintiff, A. E. Price, he was a losing party.
The writer of this opinion tried the case for the Atlantic Coast Line Railway Company in the lower court and argued the case before the Supreme Court, and from the files in the original case, the following proceedings were found:
Motions for new trial were filed by the Atlantic Coast Line Railway Company in the Olive Price, Margery Price and Tommy Price cases and by the plaintiff, A. E. Price, in his case. The Circuit Judge granted the Atlantic Coast Line Railway Company a new trial in the Olive Price case, but denied new trials in the Margery and Tommy Price cases. The Circuit Judge also granted the plaintiff, A. E. Price, a new trial.
Four separate cases were filed against the Atlantic Coast Line Railway by father, mother, and two children. The Circuit Judge granted the motion of the Atlantic Coast Line Railway for a new trial in the Olive Price case because of his failure to instruct the jury that if they found from the evidence that the automobile being driven by A. E. Price with the permission and consent of Mrs. Price, was owned by Mrs. Price, any negligence that was attributable to A. E. Price would also be imputed to Mrs. Price. The court did not grant the new trial on any theory of conflicting verdicts. The lower court's order granting a new trial to A. E. Price was based upon the fact that he considered the form of the verdict confusing to the jury.
The decision of the Supreme Court in the Atlantic Coast Line R. Co. v. Price, supra, in favor of the defendant railroad was based on the error of the lower court in not directing a verdict for the railroad at the conclusion of all the evidence, upon the ground that the sole negligence in the case was that of the plaintiff, A. E. Price, without any concurring negligence on the part of the Atlantic Coast Line Railway Company.
In the case of Loftin v. Anderson, Fla. 1953, 66 So.2d 470, the Florida Supreme Court in a split decision, held that where the jury ahd awarded plaintiff-wife a judgment of $12,500 in her action, but awarded plaintiff-husband nothing, although he had proved damages, plaintiff-husband should be granted a new trial for damages only. In the Loftin case, however, there was no question involving the negligence or contributory negligence of plaintiff-husband, as the actions of the husband and wife were predicated upon the sudden stopping of a railroad train in which they were riding.
In the case of Gaita v. Pamula, 1956, 385 Pa. 171, 122 A.2d 63, 64, another husband and wife action for property damages and for personal injuries, the jury brought in a verdict for the husband for property damage only and did not allow the wife anything for her injuries. The wife claimed that the verdict was capricious and should have been set aside, but the court in its opinion stated:
'* * * The truth of the matter is that the jury chose to disbelieve pl...
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