Braddock v. Seaboard Air Line R. Co.

• Decision Date: 11 May 1955
• Citation: 80 So.2d 662
• Parties: Virgil BRADDOCK, Appellant, v. SEABOARD AIR LINE RAILROAD COMPANY, Appellee. James M. BRADDOCK, Appellant, v. SEABOARD AIR LINE RAILROAD COMPANY, Appellee.
• Court: Florida Supreme Court

Page 662

80 So.2d 662

Virgil BRADDOCK, Appellant, v. SEABOARD AIR LINE RAILROAD COMPANY, Appellee.

James M. BRADDOCK, Appellant, v. SEABOARD AIR LINE RAILROAD COMPANY, Appellee.

Supreme Court of Florida, Special Division B.

May 11, 1955.

Rehearing Denied June 20, 1955.

Nichols, Gaither, Green, Frates & Beckham and Wm. S. Frates, Walter H. Beckham, Jr., and Sam Daniels, Miami, for appellant.

Smathers, Thompson, Maxwell & Dyer, Miami, and Fleming, Jones, Scott & Boots and Charles R. Scott, Jacksonville, for appellee.

PATTERSON, Associate Justice.

On the afternoon of March 25, 1953, James M. Braddock, an eight year old schoolboy, was riding his bicycle home from school in the city of Miami. As he crossed defendants' tracks near his school he was run over by one of defendants' locomotives, suffering the loss of his left leg.

The injured youth and his father, Virgil Braddock, each brought an action against the defendant and in a consolidated trial the jury returned verdicts of $248,439.00 for the son and $6,500.00 for the father. The trial judge set both verdicts aside and ordered new trials because of the refusals of the plaintiffs to enter remittiturs of $123,431.05 and $4,349.80, respectively.

The verdicts were filed on June 26, 1953. After hearing argument on motions for new trial the trial judge entered an order of remittitur in each case on October 7, 1953. The James M. Braddock order read:

'1. That the jury, in its verdict, allowed the exact amount claimed by the plaintiff in the argument. Those figures for pain and suffering, inability to lead a normal life, humiliation and embarrassment and future medical, I find a little high, but the Court is loath to substitute its judgment for that of the jury.

'2. The items for future pain and suffering, humiliation and embarrassment, inability to lead a normal life and loss of earning capacity were apparently in the exact figures claimed in the argument by plaintiff. This shows clearly that the jury did not take into account the Court's instruction as to reducing this to present worth. The statutes do not give a table for the present worth from age eight on, the age of this boy at the time of trial, but the Court secured from an actuary the figures of the present worth of $1.00 per annum. Annuity at age eight is 23.55. Multiplying that by $1,825.00 per year gives the present worth of the sums allowed for pain and suffering, humiliation and embarrassment and inability to lead a normal life in the sum of $42,978.75 as the present worth, $1,825.00 being the total amount divided by fifty-six years. The jury apparently allowed $121,000.00 for loss of earning capacity. While this is problematical and there may be no diminution of earning capacity, and, in fact, it could be increased by change of occupation yet the jury so found. Since the plaintiff should begin to earn at twenty-one years of age, according to the figures of the plaintiff's attorney, his loss should be $2,650.00 per year. Multiplying that by the present worth at age twenty-one of $21,808, we find the figure of $56,790.20. Adding all of these figures together, we reach the sum of $123,431.05. Subtracting the sum of $125,007.95 leaves a difference of $123,431.05.

'If the plaintiff will enter a remittitur in the sum of $123,431.05, a new trial will be denied. Otherwise, a new trial will be granted.'

The Virgil Braddock order read:

'The jury in this cause rendered a verdict of $6,500.00. In their verdict for the plaintiff, James M. Braddock, in case, No. 28,126, which was tried simultaneously with this cause, the jury allowed for all future medical expenses, and naturally this item should not be allowed twice.

'The difference between the medical expenses to date and the future medical expenses is $4,349.80. If the plaintiff well enter a remittitur in the sum of $4,349.80, a new trial will be denied. Otherwise, a new trial will be granted.'

The plaintiff in each case having declined to enter remittitur pursuant to the orders of October 7, the matter was heard on motion of defendant on October 15 and orders granting a new trial in each case were entered. In the James M. Braddock case the order read:

'This cause came on before me upon the Defendants' Motion for Order Granting Motion for New Trial, and it appearing to the court that on the 7th day of October, 1953, the court entered an order stating, 'If the Plaintiff will enter a remittitur in the sum of $123,431.05, a new trial will be denied. Otherwise, a new trial will be granted'; and it further appearing to the court that no such remittitur has been entered by the Plaintiff, and the matter having been argued by counsel for the respective parties, and the court being fully advised in the premises, it is thereupon,

'Ordered and Adjudged that a new trial be and it hereby is granted.'

In the Virgil Braddock case the order read:

'This cause came on before me upon the Defendants' Motion for Order granting Motion for New Trial, and it appearing to the court that on the 7th day of October, 1953, the court entered an order stating, 'If the Plaintiff will enter a remittitur in the sum of $4,349.80, a new trial will be denied. Otherwise, a new trial will be granted'; and it further appearing to the court that no such remittitur has been entered by the Plaintiff, and the matter having been argued by counsel for the respective parties, the court being fully advised in the premises, it is, thereupon,

'Ordered and Adjudged that a new trial be and it hereby is granted.'

Each case is here on appeal by the plaintiff below, taken from the order of October 15, under provisions of Secs. 59.04, 59.06 and 59.07(4), Florida Statutes, F.S.A.

It must be noted that the James Braddock case is unique in that the jury awarded damages in the exact amount argued and requested by plaintiff's counsel based upon a detailed itemized breakdown of the various elements of damages demanded, which itemized breakdown was graphically displayed to the jury on a large placard during counsel's summation. And so it was in the Virgil Braddock case, except that the jury returned an even $6,500 rather than $6,570 demanded. Upon this unusual aspect of the verdicts, both counsel, as well as the trial judge, have proceeded under the assumption that the aggregate verdict in each case constitutes an award of each particular item of damage as contended for and calculated by plaintiff's counsel. We think such an assumption as realistic and reasonable and affords a proper basis for an analysis of the verdicts, both in the court below and on appeal here.

At the outset we examine the orders appealed from in the light of Sec. 59.07(4) and the contention of defendant that inasmuch as only the orders of October 15 are appealed from, no errors or defects in the amount of remittiturs fixed by the orders of October 7 may be considered. We are mindful that no ground will be considered on an appeal from an order granting a new trial except that designated in such order by the trial court as the ground upon which the motion was granted. However, reading the two orders in each case together, we think that each complements the other and together constitute the court's action on defendant's motion. The orders of October 7 did not dispose of the motion, and by reference to them in the orders of October 15 the court has specifically designated the precise ground on which the later orders rest, as required by the statute. We are left in no doubt of his grounds thus expressed, and the two orders together fix the limits of inquiry on review.

We first, then, consider the orders in the Virgil Braddock case. Admittedly the father's verdict of $6,500 is composed entirely of medical expenses to the date of the trial plus future medical expenses until the son reaches majority. None of the items is charged to be excessive, nor is it contended that they are improper as elements of damage to be allowed the father. The only ground for the order for remittitur of the future medical expenses was that such expenses to the son's majority had also been allowed in the son's verdict, and constitute an unauthorized double recovery against defendant. Plaintiff contends no such allowance was made to the son; hence the order for remittitur by the father was erroneous. Our study of the calculation of the son's verdict leads us to the same conclusion. For the reason mentioned earlier, the record reveals the precise calculation of future medical expenses of the son. The record reveals without dispute that the son's life expectancy at the date of trial was fifty-six years, and his life expectancy beyond majority was 44 years. Each item of future medical expenses allowed the son was calculated on the basis of 44 years duration, a fact conceded by defendant. One item, bi-weekly visits for limb adjustment, calculated on 56 years' duration, is shown by the record to be an allowance, not for the expense, but for the inconvenience and annoyance involved. No corresponding item appears in the calculation of the father's damages. We must therefore conclude that such future medical expenses as were allowed the son were medical expenses to be incurred after the son's majority. We think the record makes it clearly apparent that the trial court was mistaken in the impression that future medical expenses allowed the father were duplicated in the son's verdict. No other reason having been designated in the order granting new trial, such order is therefore erroneous and must be reversed for entry of an order denying new trial in the Virgil Braddock case.

We next consider the order granting a new trial in the James M. Braddock case. Reading together the orders of October 7 and October 15 it is manifest that the trial court approved the verdict against every ground of the...