Corbett v. Seaboard Coastline R. Co., 78-98

• Decision Date: 18 September 1979
• Docket Number: No. 78-98,78-98
• Citation: 375 So.2d 34
• Parties: Larry CORBETT, as Personal Representative of the Estate of Margaret Corbett, Deceased, Appellant, v. SEABOARD COASTLINE RAILROAD COMPANY, Appellee.
• Court: Florida District Court of Appeals

Page 34

375 So.2d 34

Larry CORBETT, as Personal Representative of the Estate of Margaret Corbett, Deceased, Appellant, v. SEABOARD COASTLINE RAILROAD COMPANY, Appellee.

No. 78-98.

District Court of Appeal of Florida, Third District.

Sept. 18, 1979.

Rehearing Denied Oct. 9, 1979.

Spence, Payne, Masington & Grossman, J. B. Spence, Podhurst, Orseck & Parks, Walter H. Beckham, Jr., and Joel D. Eaton, Rossman & Baumberger, Robert D. Peltz, Lane, Mitchell & Harris, Miami, and James S. Usich, Coral Gables, for appellant.

Goodwin, Ryskamp, Welcher & Carrier, Kenneth L. Ryskamp, Adams & Ward, Robert C. Ward, Miami, for appellee.

Before PEARSON, HENDRY and HUBBART, JJ.

PEARSON, Judge.

The appellant, Larry Corbett, is the personal representative of the estate of Margaret A. Corbett, deceased. Margaret A. Corbett was killed as a result of a collision between an automobile in which she was a passenger and a railroad train operated by the Seaboard Coastline Railroad Company. The collision occurred at an intersection in Dade County, Florida. Margaret Corbett was riding home from school with Renee Glover, who was driving the car. Three other passengers were in the car. They are all parties to these appellate proceedings and will be referred to by name as their position in the appeal is discussed. Larry Corbett's action was on behalf of himself as personal representative of his deceased daughter's estate and as her father, as well as for the benefit of his wife, Margaret Corbett, the mother of the child. In this action, Seaboard was a defendant, as were Renee Glover and her insurance company.

The other three passengers ¹ in the car were LaWanda Bennett, Angela Cobbs, and Edna Stamps. The cases involving the claims of Corbett and of the other passengers were consolidated for trial, and the cause proceeded to be heard before a jury on the issues of liability and damages in the Corbett case. As to all other plaintiffs, the cause was tried solely on the issue of liability.

In the Corbett case, the jury returned a verdict finding that the railroad was guilty of 75% Causative negligence, and the driver of the car, Renee Glover, guilty of 25% Causative negligence, and that Margaret Corbett was not guilty of comparative negligence. In the Glover case, the jury assessed the negligence as against the railroad, 75%; and plaintiff Glover, 25%. In the Bennett case, the jury assessed the negligence as against the railroad, 75%; the defendant Glover, 20%; and the plaintiff Bennett, 5%. In the Stamps case, the jury assessed the negligence as against the railroad, 75%; the defendant Glover, 20%; and the plaintiff Stamps, 5%. In the Cobbs case, the jury assessed the negligence as against the railroad, 75%; Renee Glover, 20%; and the plaintiff Cobbs, 5%.

In the Corbett case, damages under the wrongful death act were returned for the estate of the deceased minor in the amount of $1,775.86. Damages were awarded for the benefit of the mother in the amount of $500,000, and for the benefit of the father in the amount of $500,000. The defendant railroad moved for a new trial and for a judgment notwithstanding the verdict in accordance with prior motions for directed verdict and for remittitur; the motions were denied. The court granted the motion for the entry of a remittitur or in the alternative for a new trial on damages. The order, in its entirety, provides:

THIS CAUSE came on to be heard before the court upon Motion for Entry of a Remittitur or, in the Alternative, for a New Trial filed by Defendant SEABOARD COASTLINE RAILROAD COMPANY and Plaintiff's Motion for Clarification of Court's Order With Respect to Remittitur and New Trial. The court having heard argument of counsel and being advised in the premises, finds that the verdict based on the evidence adduced at this trial relative to the mental pain and suffering sustained by the mother and father of the deceased minor is contrary to the manifest weight of the evidence. The damages were so excessive and unreasonable as to convince the court the jury was actuated in arriving at its verdict by passion, partiality, prejudice, or other improper influence. It is accordingly,

ORDER AND ADJUDGED that Defendant's motion is granted and a remittitur is hereby directed in the amount of $250,000 as to each parent, and that a new trial on the issue of damages be and the same is hereby granted unless each parent, through the personal representative, shall agree to a remittitur in the amount of $250,000 on the verdict for the benefit of each respective parent. The effect of this remittitur is to reduce the verdict for the amount of each parent from $500,000 to $250,000.

The Plaintiff shall have 20 days from the date of this order to file his election to accept or reject the remittitur and if said remittitur is accepted the Motion for New Trial on damages is denied.

Should the Plaintiff file a written election to reject the remittitur prior to the expiration of the 20 days, or if the Plaintiff does not file an election to accept the remittitur within 20 days, then in such event a new trial be and the same is hereby granted upon the issue of damages only.

Plaintiff Corbett refused to accept the remittitur and has appealed from the new trial order resulting from the refusal of the court-ordered remittitur.

Seaboard has cross-appealed with regard to certain rulings during the trial affecting the liability issue. Plaintiff Bennett has cross-appealed (1) adopting plaintiff Corbett's position on the Seaboard's appeal, and (2) urging that it was error to allow the question of Bennett's comparative negligence to go to the jury. Plaintiff Cobbs has cross-appealed and adopts cross-appellants Corbett's position on all points. Plaintiff Stamps, in her cross-appeal, urges the same error, i. e., that it was error to allow the question of her comparative negligence to go to the jury. Appellee Glover joins in the argument presented by Seaboard relating to the remittitur and new trial, but urges that there was no error upon the evidentiary ruling, argued as error by Seaboard, excluding evidence that Glover, the driver, did not have a driver's license. It will be most convenient to divide the discussion of the various issues involved on the basis of:

I. The Corbett appeal with regard to the remittitur and resulting new trial.

II. Seaboard's appeal seeking a new trial on the liability issue.

III. The issue of the comparative negligence of the passengers which is raised by the appeal of Bennett, Cobbs and Stamps.

I.

The appeal of Larry Corbett, as personal representative and on behalf of himself, as father, and of his wife, as mother, of the deceased, Margaret A. Corbett, argues that the trial court improperly entered a remittitur, which resulted in the new trial, in that the court substituted its judgment on damages for that of the jury. The previously-quoted order of the trial court in essential portion finds

". . . that the verdict based on the evidence adduced at this trial relative to the mental pain and suffering sustained by the mother and father of the deceased minor is contrary to the manifest weight of the evidence. The damages were so excessive and unreasonable as to convince the court the jury was actuated in arriving at its verdict by passion, partiality, prejudice, or other improper influence."

There are competing rules on the error that is committed by a trial judge when he determines that a verdict is excessive and enters a remittitur. The first, stated affirmatively, is that it is within the discretion of the trial judge to set aside a jury award and enter a remittitur when the verdict is so inordinately large as obviously to exceed the maximum limit of a reasonable range within which the jury may operate. See Bould v. Touchette, 349 So.2d 1181 (Fla.1977); and School Board of Palm Beach County, Inc. v. Taylor, 365 So.2d 1044 (Fla.4th DCA 1978). The second, stated affirmatively, is that it is the duty of the jury to assess the worth of intangible damages, such as pain and suffering, and it is error for the trial judge to interfere with that verdict in the absence of a showing that it is not supported by the record or that the jury was influenced by matters outside its proper consideration. See Wackenhut Corporation v. Canty, 359 So.2d 430 (Fla.1978); and Laskey v. Smith, 239 So.2d 13 (Fla.1970).

Therefore, we must determine whether it appears from this record that (1) the verdict as rendered by the jury was so large as to exceed the limits of reasonable range; (2) the amount found by the jury has some support in the record; or (3) there were any indications that the jury was influenced by improper considerations.

The record is interminable and we have not read it all. But guided by the references of the parties to the portions that they find supportive to their positions, we are confident we have examined the relevant evidence. Having done so, we are unable to say with any assuredness that the verdict exceeded the limits of the reasonable range. The trial judge's order is not helpful in this regard for he simply finds the damages to be "excessive and unreasonable." The railroad does not help us much by adding that the verdict is "monstrous," nor Corbett by his characterization of the verdict as a "proper jury determination and evaluation of damages." Accordingly, we determine that the record does not show that the verdict exceeded the limits of the reasonable range.

Seaboard places its emphasis on a contention that the jury's verdict was not supported by the record. It points out that the evidence on mental pain and suffering consists entirely of the statements of the parties that they suffered mental pain and anguish because of the death of their daughter and the corroborating statements of lay witnesses that they observed this suffering and that it had a reasonable basis in a beautiful family relationship. The railroad argues therefrom that the court correctly determined that there...