Butler v. Borowsky, 58-769

• Decision Date: 09 May 1960
• Docket Number: No. 58-769,58-769
• Parties: J. Turner BUTLER and William A. Hallowes, as Trustees of the property of the Florida East Coast Railway Company, a corporation, Appellants, v. Bertha BOROWSKY and Joseph Borowsky, her husband, Appellees.
• Court: Florida District Court of Appeals

Page 656

120 So.2d 656

J. Turner BUTLER and William A. Hallowes, as Trustees of the property of the Florida East Coast Railway Company, a corporation, Appellants, v. Bertha BOROWSKY and Joseph Borowsky, her husband, Appellees.

No. 58-769.

District Court of Appeal of Florida, Third District.

May 9, 1960.

Rehearing Denied June 10, 1960.

Scott, McCarthy, Preston, Steel & Gilleland and Robert Beckham, Miami, for appellants.

Von Zamft & Kravitz and Leonard H. Rubin, Miami, for appellees.

HORTON, Chief Judge.

Defendants below have appealed from a final judgment by which the plaintiffs recovered a total sum of $30,000, as damages resulting from personal injuries sustained in a railway accident. Appellees, husband and wife, were passengers on appellants' train when it derailed near Daytona Beach, Florida, on March 16, 1957. By the complaint, they each sought damages for personal injuries sustained as a result of the derailment, and, in addition, the husband sought recovery for loss of consortium and services and for medical expenses, past and future.

The trial court found, as a matter of law, that the appellants were negligent, and a summary judgment on the issue of liability was entered, in which the trail court found:

'[T]hat the defendants' agents, having observed sparks, fire and smoke from the unit causing the derailment, were negligent for the reason that the said employees of the defendants continued to operate the train after they had isolated the No. 2 engine of Diesel Electric Locomotive 1010 and thereby rendered useless the mechanical warning device known as the wheel slip relay indicator, attached to the offending unit. * * *.'

The case was tried before a jury solely on the issue of damages. The judgment apprealed was entered on the verdict rendered by the jury.

Appellants' basic contentions are that (1) the trial court erred in the entry of summary judgment on the issue of liability; (2) the trial court erred in allowing the jury to consider mortality tables; (3) the verdict was excessive; and (4) the trial court erred in taxing certain costs against the appellants. Other contentions raised by appellants have been duly considered and are found to be without merit.

To sustain their position concerning the first point, appellants have cited Gordon v. Hotel Seville, Fla.App.1958, 105 So.2d 175, where, on page 178, this court quoted from the opinion in Williams v. City of Lake City, Fla.1953, 62 So.2d 732, as follows:

"The right to a jury trial is a very sacred part of our system of jurisprudence and, while we have held that the granting of a summary judgment does not infringe upon such constitutional right, that very holding carries with it the idea that such judgments should be sparingly granted and only in those cases where there remains no genuine issue of any material fact. To put it another way, such motion should be granted only where the moving party is entitled to a judgment as a matter of law. It was never intended by this rule that cases should be tried by affidavit or that affidavits, interrogatories or depositions or similar evidence, could be used as substitutes for a jury trial. To sum it all up, if there are issues of fact and the slightest doubt remains, a summary judgment cannot be granted." (Emphasis in original quotation.)

However, in applying that test to the proofs in this case, we conclude that the summary judgment here was correctly entered and the trial judge was eminently correct in concluding that the appellees were entitled to the judgment on the liability issue as a matter of law.

Secondly the appellants contend that life expectancy tables based on the average lives of a large select group of people are improper for jury consideration in a case where appellee's own evidence affirmatively establishes that she has a physical condition that removes her from 'average' classification, and gives her a reduced life expectancy.

Prior to the injury from which this action arose, the appellee wife had been treatedd for a disease of the lymph glands called lymphosarcoma. The medical testimony in the record reveals that this is a serious disease, usually fatal, and although the patient may live comfortably for as long as fifteen years, the average duration of life is four and one-half years. The appellee wife had not received treatment for this illness since 1955, a period of approximately two years prior to the train accident. Her doctors testified that the illness had been quiescent during that time. The medical testimony further shows that as a result of the train accident, the appellee wife was hospitalized because of thrombophlebitis which developed into a chronic condition. In addition, she suffered an aggravated bursitis condition, and that as a result of these injuries, she was disabled between sixty and seventy per cent.

The mortality table introduced by appellees was a 1941 Commissioner's Standard Ordinary Mortality Table which purported to show that appellee wife had a normal life expectancy in excess of twenty years.

As in the case of City of Tampa v. Johnson, Fla.App.1959, 114 So.2d 807, 810, the cases cited by the appellants to sustain their position fall within the minority rule. In the City of Tampa case, the court, in applying the majority rule in Florida, said:

'[B]y the weight of precedent, it is recognized that the lack of normal health in a person whose life expectancy is sought to be determined does not preclude the admission of mortality tables into evidence. The rationale of this principle is that the fact of such ill health or disease goes only to the weight of the mortality tables as evidence and not to their admissibility. The probative value of mortality tables may be weakened or even fully destroyed by evidence of disease or ill health of a person whose life expectancy is in issue. Annotation, 116 A.L.R., p. 416; and 20 Am.Jur., Evidence, section 975, pp. 823-824.

'Longevity is not a certain thing. A jury is not bound by mortality tables, but these constitute only one of many factors that may be considered in estimating life expectancy....