Carter v. Duval Engineering & Contracting Co., C-143

• Decision Date: 19 January 1961
• Docket Number: No. C-143,C-143
• Citation: 128 So.2d 143
• Parties: Joseph W. CARTER and Luella B. Carter, his wife, Appellants, v. DUVAL ENGINEERING AND CONTRACTING COMPANY, a corporation, Appellee.
• Court: Florida District Court of Appeals

Page 143

128 So.2d 143

Joseph W. CARTER and Luella B. Carter, his wife, Appellants, v. DUVAL ENGINEERING AND CONTRACTING COMPANY, a corporation, Appellee.

No. C-143.

District Court of Appeal of Florida, First District.

Jan. 19, 1961.

John Paul Howard, Jacksonville, for appellants.

Mathews, Osborne & Ehrlich, Jacksonville, for appellee.

STURGIS, Judge.

The appellants, husband and wife, plaintiffs below, appeal from an order granting defendant's motion for a new trial in a negligence action for damages arising out of injuries to the wife resulting from a collision between her automobile, driven by her, and an earthmover operated by defendant-appellee. The jury awarded the wife $2,500 and the husband $2,300 damages.

While defendant filed an answer denying the negligence charged by the complaint, on the trial the defense was withdrawn and the cause tried only upon the issue of damages. Plaintiffs alone testified in their own behalf. No witnesses were produced by defendant.

The order granting the motion for new trial recites:

'This cause came on to be heard this day on defendant's motion for new trial, and the Court having heard argument of counsel and being advised in the premises, is of the opinion that the damages awarded by the jury to the respective parties is disproportionate in that if the amount awarded the plaintiff-wife by the jury was a fair award, then in the opinion of the Court, the amount awarded the plaintiff-husband is excessive, and, on the other hand, if the amount awarded the plaintiff-husband by the jury was a fair award, then, in the opinion of the Court, the amount awarded to the plaintiff-wife is inadequate, and that by reason thereof the verdict of the jury herein is considered contrary to the preponderance of the evidence and the manifest justice of the case and should be set aside. It is, thereupon,

'Ordered and Adjudged that defendant's motion for new trial be, and the same is, hereby granted on the fifth ground of defendant's said motion.'

The mentioned fifth ground of the motion for new trial is as follows:

'5. The verdict is contrary to the preponderance of the evidence and the manifest justice of the case.'

We are called on to determine whether the trial court erred in granting the motion for new trial on the stated ground, where it appears that it was impelled to do so because, in its opinion, the amounts awarded by the jury to the parties, respectively, are disproportionate in favor of one or the other.

The causes of action sued on are separate and may be maintained without the joinder of the spouse in either case. Busby v. Winn & Lovett Miami, Inc., Fla.1955, 80 So.2d 675; Waller v. First Savings & Trust Co., 103 Fla. 1025, 138 So. 780; Womach v. City of St. Joseph, 201 Mo. 467, 100 S.W. 443, 10 L.R.A., N.S., 140; 41 C.J.S. Husband and Wife § 401, page 890; 27 Am.Jur. 116, Sec. 516. On oral argument here counsel for appellee conceded that the trial court was in error in granting a new trial to the wife, which admission flows from the fact that the quoted order does not hold, as a matter of law, that the jury awarded the wife damages in an amount less than allowable under the proofs, and the wife has not questioned the verdict.

The trial court has apparently promulgated a rule of law whereby in any action involving multiple parties plaintiff, the trial court may, even though plaintiffs' claims are separate and distinct, make a comparison of the verdicts rendered and, upon determining that they are disproportionate, grant a new trial as to all parties. Appellee cites no authority to support that proposition and our independent search has revealed none.

A careful review of the...