Cloud v. Fallis, No. 185

CourtCourt of Appeal of Florida (US)
Writing for the CourtSTEPHENSON, GUNTER; KANNER, C. J., and ALLEN
Citation107 So.2d 264
PartiesCharles W. CLOUD, Appellant, v. Donald FALLIS, Appellee.
Decision Date27 June 1958
Docket NumberNo. 185

Page 264

107 So.2d 264
Charles W. CLOUD, Appellant,
v.
Donald FALLIS, Appellee.
No. 185.
District Court of Appeal of Florida, Second District.
June 27, 1958.
Rehearing Denied July 22, 1958.

Shackleford, Farrior, Shannon & Stallings, Vernon W. Evans, Jr., Tampa, for appellant.

McEwen & Cason, James M. McEwen, Tampa, for appellee.

STEPHENSON, GUNTER, Associate Judge.

This is an appeal from an order granting a new trial after a jury verdict for defendant in a wrongful death action. Donald Fallis had sued Charles W. Cloud after defendant's car struck plaintiff's three year old son, fatally injuring the child. Defendant appeals.

Plaintiff filed suit September 14, 1956, joined by his wife. On November 13, 1956, an amended complaint was filed by plaintiff alone, alleging the wrongful death of plaintiff's three year old son in that defendant had negligently operated his car and had, as a result, struck and fatally injured the boy.

Defendant answered the amended complaint by denying negligence and by alleging contributory negligence on the part

Page 265

of plaintiff and plaintiff's wife in permitting their son to loiter, play, and go back and forth across the involved street unattended.

Trial was had June 6 and 7, 1957, resulting in a jury verdict for defendant. On June 10, 1957, plaintiff filed a motion for new trial upon three grounds: (1) The verdict was contrary to the law applicable, (2) The verdict was contrary to the heavy preponderance of the evidence, and:

'3. The Jury disregarded the testimony concerning the speed of defendant's car, the application of the Last Clear Chance Doctrine, and enforced a responsibility upon the plaintiff for the care and supervision of his minor child, which is contrary to the laws and dicisions (sic) affecting this type of case.'

The trial judge granted plaintiff's motion by order dated and filed August 6, 1957, as follows, omitting formal parts:

'The case involves the death of a three-year-old boy who was killed by the defendant while the child was in the process of crossing the street immediately in front of his parent's home.

'The defendant filed a plea of contributory negligence in the answer and denied that the death of the child was due to any negligence or carelessness on his part. The contributory negligence in the allegation of the answer was due to the fact that the plaintiff and his wife, Geraldine Fallis, the parents of the child, carelessly and negligently permitted and allowed the said minor child to loiter and play in and about the said street.

'The motion for the new trial is based upon the claim that the verdict was contrary to the heavy preponderance of the evidence; that the jury disregarded the testimony concerning the speed of the defendant's car; also disregarded the application of the Last Clear Chance Doctrine and enforced a responsibility on the plaintiff for the care and supervision of the minor child, contrary to the laws and decisions affecting this type case.

'I am mindful of the fact that in Florida questions of negligence and contributory negligence are largely matters to be decided by the jury. At the same time, in this case, it is my opinion that the verdict of this jury is contrary to the manifest weight of the evidence and while, as stated above, our courts have delegated to the jury the duty of deciding those questions of negligence and contributory negligence, at the same time I think the greater weight of authority in Florida has never been shown to be other than that if the Judge who heard the case questions that the verdict is contrary to the manifest weight of the evidence, it is his duty to grant a new trial. The evidence in this case showed conclusively, in may opinion, that the defendant in this case was negligent by going through a thickly populated area, which he knew had in it many children, at a rate of speed which the evidence showed was in excess of the speed limit. Therefore, the jury must have gone on the theory that the parents contributed to the death of their child in such a way as to avoid recovery and must have applied to these parents a greater measure of responsibility than the law requires. It is therefore,

'Ordered, Adjudged, and Decreed that the motion for a new trial be and the same is hereby granted.

'Done and Ordered in chambers at Tampa, Hillsborough County, Florida, this 6th day of August, A.D., 1957.'

Notice of appeal was filed September 24, 1957.

Page 266

The accident occurred at about 6:30 P. M., July 19, 1956, on Oklahoma Avenue in Tampa. Defendant was driving east on Oklahoma at about 30 miles per hour. The weather was clear, the street was dry and there was adequate light. The scene of the accident was in a small subdivision in which the houses were well back from the street. Defendant had a clear view and knew that a number of children lived in the subdivision through which he passed. As defendant reached the 4400 block, he saw a child running across the street from south to north, that is, from defendant's right to his left, about 40 feet in front of defendant's approaching car. Defendant applied his brakes, and his car skidded. The left front fender struck the boy, who was thrown about 17 feet from the final resting place of the car. The car wheels laid down about 48 feet of skid marks. The child died shortly after the accident.

Just prior to the accident, the boy had eaten supper with his parents and maternal grandparents. He had then left the house. Neither the parents nor grandparents knew where he was going, but all apparently assumed he was going to play in his own yard on his 'gym set'. The child was 3 years and one month old at his death.

The only person who actually saw the accident and all the events immediately preceding was defendant. A next door neighbor of plaintiff, one Reynolds, was in his front yard from where he saw the child on the sidewalk, looked away and then looked back in time to see the child flying through the air. The child's grandfather looked out plaintiff's front window in time to see defendant's car striking the boy.

The parties stipulated that the speed limit was 25 m. p. h. and that the accident caused the child's death.

The writer of this opinion perceives an area of doubt in the rules by which a trial judge is bound while considering motions for new trial based upon the justice or injustice of a verdict in light of the effect or weight of all the evidence. It may be more proper to say that the doubt lies in the rules by which an appellate court should bind itself while reviewing such trial judge's actions with regard to such motions.

The questions raised by this appeal were approached with the knowledge that this case was indeed a close one. The facts, above outlined only briefly, are such that one might readily admit a trial judge could properly grant or could just a § properly deny plaintiff's motion for new trial. This explains why the outline of fact is brief and why the 'area of doubt' mentioned is presently so significant.

Perhaps the first case in Florida dealing with the question at hand was Shultz v. Pacific Insurance Co., 1872, 14 Fla. 73. In that case the...

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37 practice notes
  • Cloud v. Fallis
    • United States
    • United States State Supreme Court of Florida
    • April 10, 1959
    ...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......
  • Danek v. Hoffman, No. 6133
    • United States
    • Florida District Court of Appeals
    • September 16, 1966
    ...appeal from an order granting a new trial (Grant v. Williams, 190 So.2d 23). We pointed out in Grant that Cloud v. Fallis, Fla.App.1959, 107 So.2d 264, cert. denied 110 So.2d 669 (1959), discussed the two lines of opinion that had grown up in the past in Florida, the broad discretion rule, ......
  • Aronson v. Siquier, No. 74-1338
    • United States
    • Court of Appeal of Florida (US)
    • July 22, 1975
    ...judicial conscience, it is the duty of the court to grant such relief therefrom on motion for a new trial. See Cloud v. Fallis, Fla.1958, 107 So.2d 264, For the reasons stated the final judgment entered on the verdict is reversed, the order denying the motion for new trial is set aside and ......
  • Grant v. Williams, No. 6606
    • United States
    • Court of Appeal of Florida (US)
    • August 12, 1966
    ...courts that we are again getting in the same condition, which existed prior to this court's opinion in Cloud v. Fallis, Fla.App.1959, 107 So.2d 264, cert. denied 110 So.2d 669 (1959), in an opinion written for the Supreme Court by Mr. Justice Thomas. Some of the opinions have used the subst......
  • Request a trial to view additional results
37 cases
  • Cloud v. Fallis
    • United States
    • United States State Supreme Court of Florida
    • April 10, 1959
    ...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......
  • Danek v. Hoffman, No. 6133
    • United States
    • Florida District Court of Appeals
    • September 16, 1966
    ...appeal from an order granting a new trial (Grant v. Williams, 190 So.2d 23). We pointed out in Grant that Cloud v. Fallis, Fla.App.1959, 107 So.2d 264, cert. denied 110 So.2d 669 (1959), discussed the two lines of opinion that had grown up in the past in Florida, the broad discretion rule, ......
  • Aronson v. Siquier, No. 74-1338
    • United States
    • Court of Appeal of Florida (US)
    • July 22, 1975
    ...judicial conscience, it is the duty of the court to grant such relief therefrom on motion for a new trial. See Cloud v. Fallis, Fla.1958, 107 So.2d 264, For the reasons stated the final judgment entered on the verdict is reversed, the order denying the motion for new trial is set aside and ......
  • Grant v. Williams, No. 6606
    • United States
    • Court of Appeal of Florida (US)
    • August 12, 1966
    ...courts that we are again getting in the same condition, which existed prior to this court's opinion in Cloud v. Fallis, Fla.App.1959, 107 So.2d 264, cert. denied 110 So.2d 669 (1959), in an opinion written for the Supreme Court by Mr. Justice Thomas. Some of the opinions have used the subst......
  • Request a trial to view additional results

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