Clark v. Choctawhatchee Elec. Co-op., Inc., CO-OPERATIV

• Decision Date: 26 November 1958
• Docket Number: I,CO-OPERATIV
• Parties: Mrs. Josephine CLARK, by her husband and next friend, Dallas G. Clark, and Dallas G. Clark, Individually, Appellants, v. CHOCTAWHATCHEE ELECTRICnc., a corporation, Appellee.
• Court: Florida Supreme Court

Page 609

107 So.2d 609

Mrs. Josephine CLARK, by her husband and next friend, Dallas G. Clark, and Dallas G. Clark, Individually, Appellants, v. CHOCTAWHATCHEE ELECTRIC CO-OPERATIVE, Inc., a corporation, Appellee.

Supreme Court of Florida.

Nov. 26, 1958.

Rehearing Denied Jan. 14, 1959.

Adams & Wade, Crestview, for appellants.

A. G. Campbell, Jr., De Funiak Springs, for appellee.

THOMAS, Justice.

In this case notice of appeal was filed before 1 July 1957, and the court, pursuant to Sec. 26(6) of Article V of the Constitution as amended 6 November 1956, F.S.A., elected to retain the cause for decision. It should be noted that the transcript was filed 25 March 1958, and the final brief 13 August 1958. The case was orally presented to this court 29 October 1958.

At the time of the incident which gave rise to this litigation, the appellant, Mrs. Josephine Clark, was the operator of a gasoline service station. Close by the property, the appellee maintained a high power line carrying 7,200 volts of electricity. While the employees of appellee were attempting to repair the line, without breaking the circuit, and this appellant was ironing in the adjacent building, something gave way so that the line fell striking the pumps and putting them out of commission, causing actual damage to certain property at the station as will be seen from the part of the judge's order presently quoted, discharging electrical current in the immediate area, and setting fire to the woods some distance away.

When this occurred, the appellant, who was in the building near the pumps, saw a blinding flash that lighted the whole station with 'blue fire,' heard a loud report, and felt a shock. Her tongue thickened, her legsl began to ache, then buckled, and she fell to the ground. She was taken to the hospital about eleven o'clock in the morning and remained there until evening. Her legs continued to hurt and in her body there was a burning sensation so intense that she could not go near a stove or heater. As she described her condition, she was 'just burned up, my face and hands.' She then consulted physicians in a distant town, one or the other of whom evidently treated her for a considerable period. At the time of the trial, she had not sufficiently recovered fully to resume her operation of the filling station and she was still suffering discomfort in her legs. Although she had before the episode been active in raising her four children, doing her housework and running the filling station between times, her actions were greatly curtailed afterwards. Such, in brief, was appellant's story which the jury was entitled to believe, and did.

The jury returned a verdict for $10,000, in favor of Mrs. Josephine Clark, and $2,000 in favor of her husband, Dallas G. Clark, who claimed damages for loss of his wife's services.

At the close of all the evidence in the case, the appellee offered a motion for a directed verdict for the defendant, which the court took under advisement. A few days after the verdicts were returned, the appellee moved, pursuant to Rule 2.7, 1954 Rules of Civil Procedure, 31 F.S.A., that the court enter a judgment in its favor 'in accordance with its motion for a directed verdict' or that the court grant a new trial.

The trial judge concluded that in the circumstances he related, to which we shall presently refer while digesting his final order, the appellants were entitled to a judgment for one dollar and that to such extent the motions for a directed verdict and for a new trial were denied. He considered the evidence sufficient to prove damages to property located 'in and about the service station * * * (e. g., the fuse box, water can, light bulbs and gas pumps),' although the monetary loss was not established.

In his order, painstakingly prepared, the judge found that the appellants had failed to establish 'direct physical impact or trauma,' which he considered indispensable to their recovery for injury to Mrs. Clark. He reviewed that part of the testimony of this appellant about the effect of the incident on her tongue, ears and legs. He quoted her testimony that she didn't know whether or not she had had an electrical shock; that she didn't know what an electrical shock was; that she had never had one; and that she received no burns. The judge quoted, too, the statement of one of the physicians that he had sent the patient to the other doctor because he thought her emotional and mental balance had been upset by the experience, although he had not eliminated the possibility of physical injury. The physician found no burns on the body of the patient, but he thought emotional disturbance could be caused by electrical shock. The quoted testimony closed with the statement that the patient's symptoms could have resulted from electrical...