Cloud v. Fallis
| Decision Date | 10 April 1959 |
| Parties | Charies W. CLOUD, Petitioner, v. Donald FALLIS, Respondent. |
| Court | Florida Supreme Court |
Shackleford, Farrior, Stallings, Glos & Evans and Vernon W. Evans, Jr., Tampa, for petitioner.
McEwen & Cason, Tampa, for respondent.
It is the claim of the petitioner that the decision rendered in this case by the District Court of Appeal Second District, Cloud v. Fallis, Fla.App., 107 So.2d 264, conflicted with decisions of this court in Hart v. Held, 149 Fla. 33, 5 So.2d 878, Martin v. Stone, Fla., 51 So.2d 33, and Jordan Furniture Co. v. Goggans, Fla. 101 So.2d 114, on the same point of law, namely, the test by which should be determined the propriety of an order of a judge granting a motion for a new trial.
The action was instituted by the respondent to recover damages for the death of his three-year-old son alleged to have been caused by the negligence of the petitioner in the operation of his motor car. The petitioner denied negligence and pleaded the negligence of the parents of the child in allowing him to play in the street. At the trial the jury returned a verdict for the defendant, petitioner.
On motion of the respondent for a new trial the judge, recognizing that questions of negligence and contributory negligence were ones for decision by the jury, stated, nonetheless, that he held the opinion the verdict of the jury was contrary to 'the manifest weight of the evidence' and that in such circumstance it was his 'duty to grant a new trial.' He thought it had been conclusively shown that the petitioner was, at the time the little boy was struck, passing at excessive speed through a 'thickly populated area, which he knew had in it many children' and that the jury had held the parents to a greater degree of responsibility for the care of their child than the law required.
The order was taken to the district court of appeal and was affirmed.
The author of the opinion of the appellate court painstakingly reviewed pronouncements of this court on the subject of the rules which bind a trial judge when considering motions for new trial and the rules governing appellate courts in reviewing the actions of trial courts on such motions. It was stated by the court that there appeared to be decisions clearly supporting affirmance of the order under attack, and other decisions just as plainly requiring reversal of it. In amplification of this thought the court said that the earlier cases seemed to recognize a broader discretion in the trial judge than the later ones.
Recognition of different rules in this respect was expressed in Labruzzo v. Atlantic Dredging & Construction Co., Fla., 73 So.2d 228, when the court frankly said that two rules had been followed, one, that presence of 'substantial competent evidence' and absence of any showing the jury had been deceived about the force and credibility of the evidence or influenced by outside considerations would demonstrate the error of granting a motion for new trial, citing Martin v. Stone, supra, and another, that when the verdict is contrary to the 'manifest weight and probative force of the evidence and justice of the cause' a new trial should be granted, citing Crawford v. Hinson, 108 Fla. 630, 146 So. 829, and other cases. The court concluded that the case then under review should be governed by the 'rule last cited.' The similarity of the language quoted to that appearing in cases to which we will presently refer is significant. The task of reconciling completely the two lines of decisions is, we think, impossible. And, certainly, there is no need for two rules.
On the theory that inconsistencies found by the court in our decisions relating to the rules regulating determination of motions for new trial would, if they existed, necessarily result in conflicts between some of them and the decision of the district court of appeal in this controversy, we concluded to issue the writ of certiorari and attempt to resolve any conflict we found between these rulings, and incidentally to clarify the law on the subject.
Specifically, the petitioner asserts that he got in the district court the review he sought but that that court did not use the proper yardstick because the court 'declined to accept and apply the substantial competent evidence rule * * *.' This statement taken from the petitioner's brief brings into focus, we think, the point of difference the district court of appeal considered to have developed, that is, whether the so-called 'broad discretion' rule or the so-called 'substantial competent evidence' rule should be applied by an appellate court when judging the correctness of an order of a trial court granting a motion for a new trial.
We turn back now to the three cases cited in the beginning which petitioner claims were not followed when the order in the present case was affirmed. The gist of the decision in the first of these, Hart v. Held, supra [149 Fla. 33, 5 So.2d 882], was that the order, then under review, granting a motion for new trial should be reversed because it was 'settled law that if there [is] * * * substantial competent evidence in support of the verdict * * * the same should stand and the trial court is without authority at law to substitute his conclusions * * * for the views and conclusions of the jury * * *.' The court added that the verdict could be set aside if it appeared to the trial judge that the jury had been deceived 'as to the force and credibility of the evidence' or had been influenced by considerations 'outside the record,' and the court repeated that the verdict should not be disturbed if supported by testimony 'and nothing [could] be accomplished except to have another jury review the cause.'
Following these statements was cited Seaver v. Stratton, 133 Fla. 183, 183 So. 335, 337. Here we find the announcement that if '[t]here was substantial competent evidence in support of the verdict, whether or not it preponderated in favor of the plaintiff was not for the trial court to determine,' but the trial court could set aside a verdict in event the jury had been deceived as to the force and credibility of the testimony or influenced by improper evidence or considerations outside the evidence. This opinion, said the district court of appeal, was the one that veered from the rule established about 65 years before in Shultz v. Pacific Insurance Co., 14 Fla. 73, and meanwhile followed, that the trial court should not refrain from exercising the power to interfere with the verdict of a jury when it appeared to him difficult to reconcile the verdict with the justice of the case and the manifest weight of evidence. This court in Shultz v. Pacific Insurance Co., supra, then put the matter in the discretion of the judge who, after all, 'has the same opportunity as the jury to observe what occurs in the trial.'
Since the court in Hart v. Held, supra, citing Seaver v. Stratton, supra, referred to the lack of any accomplishment save review of the case by another jury, it seems fitting further to quote from Shultz v. Pacific Insurance Co., supra, the comment that the trial court in exercising its power to 'set aside a verdict which does not reach a substantially just conclusion' does not invade the 'province of the jury for the reason that it does not conclusively settle facts in the form of a verdict, but only gives another jury the opportunity of so doing and of correcting what appears to be a mistake.'
We go to the second case cited at the outset as one claimed by...
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...of Appeal, Canty v. Wackenhut, 311 So.2d 808 (Fla. 3d DCA 1975), allegedly conflicts with the decisions of this Court in Cloud v. Fallis, 110 So.2d 669 (Fla.1959) and Bennett v. Jacksonville Expressway Authority, 131 So.2d 740 (Fla.1961). We have jurisdiction. Article V, Section 3(b)(3), Fl......
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...has either been influenced by considerations outside the record or misled by the force and credibility of the evidence. Cloud v. Fallis, 110 So.2d 669, 673 (Fla.1959). However, this "broad discretion" does not give a trial judge unbridled discretion to order a new trial. White v. Martinez, ......
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