Cory v. Greyhound Lines, Inc.

• Decision Date: 08 December 1971
• Docket Number: No. 40880,40880
• Citation: 257 So.2d 36
• Parties: Melba I. CORY, as surviving widow of Fay C. Cory, Deceased and as Executrix of the Estate of Fay C. Cory, Deceased, Petitioner, v. GREYHOUND LINES, INC., a California corporation, Respondent.
• Court: Florida Supreme Court

Page 36

257 So.2d 36

Melba I. CORY, as surviving widow of Fay C. Cory, Deceased and as Executrix of the Estate of Fay C. Cory, Deceased, Petitioner, v. GREYHOUND LINES, INC., a California corporation, Respondent.

No. 40880.

Supreme Court of Florida.

Dec. 8, 1971.

Rehearing Denied Feb. 15, 1972.

Alan R. Schwartz, of Horton & Schwartz, Miami, and James H. Nance, Melbourne, for petitioner.

J. Compton French and Thorwald J. Husfeld, of Landis, Graham, French, Husfeld, Sherman & Ford, DeLand, for respondent.

ADKINS, Justice.

By petition for certiorari, we have for review a decision of the District Court of Appeal, Fourth District (Cory v. Greyhound Lines, Inc., 243 So.2d 478), which allegedly conflicts with a prior decision of the District Court of Appeal, Second District (Atlantic Coast Line Railroad Company v. Turpak, 225 So.2d 340), on the same point of law. Fla.Const., art. V, § 4, F.S.A.

In the early morning hours of July 12, 1966, a greyhound bus, heading north through the fog, struck an East Volusia Mosquito Control District fogging machine, creeping slowly in the same direction. In the resulting crash and gasoline explosion, Fay C. Cory, the operator of the fogging machine was burned to death. His widow, Melba I. Cory, brought two separate actions against Greyhound Lines, Inc., to recover damages arising out of Mr. Cory's injuries and death. One action was brought individually under the wrongful death statute. The other action was brought by Mrs. Cory as Executrix of her deceased husband's estate under the survivor statute.

The cases were consolidated for jury trial and the following verdicts were returned:

'We, the jury, find for the Plaintiff, Melba I. Cory, as the surviving widow of Fay C. Cory, and against the Defendant, Greyhound Lines, Inc., and assess her damages in the amount of $11,192.00. So say we all. Signed G. Robert Jarrett, Foreman, January 14, 1970.'

'We, the jury, find for the Plaintiff, Melba I. Cory, as Executrix of the Estate of Fay C. Cory, deceased, and against the Defendant, Greyhound Lines, Inc., and assess her damages in the amount of $147,000.00. So say we all. Signed G. Robert Jarrett, Foreman, dated January 14, 1970.'

The exact amount requested in the survival case ($11,192.00) was assessed in the wrongful death action. The jury assessed $147,000.00 (slightly more than had been requested in the Wrongful death case) in the survival action.

Thereupon, the following occurred:

'THE COURT: Let me see the verdicts again please?

'Could Counsel approach the bench please? There is no testimony of this amount of the Executrix Estate. I will call this to their attention and they can retire and consider their verdicts.

'(This concludes discussion at the bench)

'THE COURT: Ladies and Gentlemen, it appears to the Court that there is no testimony that would warrant the verdict for Melba I. Cory as Executrix of the Estate in the sum of $147,000.00. Likewise, as far as the surviving widow of course, this is up to you, and the Court is going to send you back to the juryroom to deliberate further with regard to the awarding of damages to the widow and awarding of damages to the estate.

'In other words, the Court is of the opinion that certainly it appears to the Court that the verdict for the widow is approximately the sum that was asked for by the executrix, by the personal representatives of the estate, and it appears that perhaps you have confused the two, and I'm going to ask you to return to the juryroom and deliberate further, based upon the instructions I have just given.

'You may return to the juryroom.'

The jury returned to the courtroom and rendered the following verdicts:

'We, the jury, find for the Plaintiff, Melba I. Cory, as the surviving widow of Fay C. Cory, and against the Defendant, Greyhound Lines, Inc., and assess her damages in the amount of $80,192.00. So say we all, Mr. G. Robert Jarrett, Foreman, January 14, 1970.'

'We, the jury, find for the Plaintiff, Melba I. Cory, as Executrix of the Estate of Fay C. Cory, deceased, and against the Defendant, Greyhound Lines, Inc., and assess her damages in the amount of $78,000.00. So say we all, Mr. G. Robert Jarrett, Foreman, January 14, 1970.'

The jury was then polled and a discussion took place out of the presence of the jury. Mr. James H. Nance, the attorney for plaintiff, suggested that the jury had put the Executrix award on the wrongful death verdict and the wrongful death award on the Executrix verdict when they originally returned. Thereupon, the following occurred:

'MR. HUSFELD: If the Court please, what Mr. Nance is asking is to tell them what damages should be in each case. It is capricious, and I feel that this Court should at this time declare a mistrial and declare the verdicts not the result and judgment of the jury, but capriciously done.

'THE COURT: Frankly, I was in accord with the first verdict, that it appeared to me, that because they had two, that they had them backwards, but after they went out, though Counsel asked for, if I remember, $11,192.00, if they find pain and suffering to warrant the larger verdict, I'm of the opinion now, that the Court has gone about as far as it can go.

'MR. NANCE: Judge, obviously the jury is confused on the element.

'THE COURT: That may be true Counsel, but it also may not be true, and I'm not sure of my authority to pry into this jury's deliberations further. I thought I had made it clear what appeared to the Court, and unless Counsel is in accordance to what I do next, I'm inclined to bring this jury back in and discharge them.' (Emphasis supplied.)

The defendant filed motion for a new trial on the issues of both liability and damages. The plaintiff filed a motion for entry of final judgments in which she sought the entry of final judgments in accordance with the alleged intention of the jury as incorrectly expressed, in the first verdicts, by the entry of a judgment of $147,000.00 for the plaintiff in the wrongful death case, and $11,192.00 for the plaintiff's estate in the survivor case. The trial judge denied plaintiff's motion for entry of final judgments and granted defendant's motion for a new trial on the issue of damages alone. The order stated:

'That there is no reason to disturb the jury's findings as to the questions of liability, the Court further finds

'That the verdicts may be based upon confusion in the minds of the jurors as to elements of damages. The Court 'thinks' that the jury intended the original verdict to render the sum requested in the Executrix verdict ($11,192.00) and the sum of $147,000.00 in favor of the Surviving Widow. Upon being sent back to the Jury Room with the verdicts, it appears that the jury took $69,000.00 from the Executrix verdict and added it to the widow's verdict, and the Court cannot ignore the fact that approximately $69,000.00 was the sum testified to by Dr. Blodgett as the amount of damages suffered by the loss of Fay Cory's supervision of the real property known as Cory Estates, but the Court is not sufficiently certain of this to rule that the amendments to the verdicts would be correcting a clerical error and determines that justice would best be served by reconsideration by another jury on the question of damages only--(Atlantic Coast Line Company v. Turpak, 225 So.2d 340).' (Emphasis supplied.)

Plaintiff filed a motion for rehearing which was accompanied by the affidavits of five jurors and counsel's affidavit as to what he had been told by the sixth juror concerning the jurors' intentions in returning the verdict. The motion for rehearing was denied. The District Court of Appeal, Fourth District, in a 'per curiam' order affirmed the order granting defendant a new trial on damages only.

For conflict petitioner refers us to Atlantic Coast Line Railroad Company v. Turpak, Supra. In that case the jury returned a verdict for the widow as Executrix, and a separate verdict for the widow in her individual capacity. These verdicts were accepted and the jury was discharged. The Court allowed the foreman to be interviewed and plaintiff's attorney gave an affidavit purporting to relate the result of the interview with the foreman. On the basis of this, the trial court undertook to reconstruct the verdict by lumping the total of both verdicts into one for the widow and awarding zero dollars' verdict for the Executrix. The defendant appealed and Mrs. Turpak, the widow, contended the jury made an 'inadvertent clerical error' and that 'there was no dispute concerning the jury's true intent.' In reversing, the District Court of Appeal, Second District, said:

'Mrs. Turpak cites numerous cases in support of her proposition * * *. These cases hold that The Court has power to correct a verdict where the jury has incorrectly apportioned damages, erroneously transposed the amounts in consolidated actions, or has made other clerical errors in rendering the verdict or verdicts. (Emphasis supplied.)

'The affidavit of Mrs. Turpak's counsel reflects that the jury foreman indicated to him that the true intent of the jury was 'to enter the total of both verdicts for the support of the wife and children' and that this was so apportioned because of the jury's erroneous belief that it should enter 'past damages' in the widow's action and 'future damages' in the Executrix's action; and that the amount of $4,102.00 for medical and general expenses and property damage was not included in either verdict because of the jury's erroneous belief that this amount had been 'stipulated upon' by the parties and therefore did not need to be set forth in the jury verdict.

'This, then, was not a mere clerical error, but...