Damico v. Lundberg, 78-1442
| Decision Date | 29 June 1979 |
| Docket Number | No. 78-1442,78-1442 |
| Citation | 379 So.2d 964 |
| Parties | Tony DAMICO and Josephine Damico, his wife, Appellants, v. Wayne William LUNDBERG, Appellee. |
| Court | Florida District Court of Appeals |
Mac A. Greco, Jr., Tampa, for appellants.
Chris W. Altenbernd of Fowler, White, Gillen, Boggs, Villareal & Banker, Tampa, for appellee.
Affirmed.
In this automobile negligence action the circuit court, acting under the authority of Section 627.7262, Florida Statutes, dismissed defendant's liability insurance carrier. The action then proceeded to trial on the merits and resulted in a defense verdict. The Florida Supreme Court has now ruled that Section 627.7262 is an unconstitutional intrusion upon that court's rule-making power. Markert v. Johnston, 367 So.2d 1003 (Fla.1979). As appellants urged on this appeal, and now on petition for rehearing, the action of the circuit court in ordering such dismissal was undeniably erroneous.
Appellants further insist that such error was prejudicial per se, automatically requiring reversal if properly contested, and cite Godshall v. Uniguard Insurance Co., 281 So.2d 490 (Fla.1973) as authority for that proposition.
We are not unmindful of Godshall, but we do not believe that by it our supreme court meant to abrogate the cardinal principle of appellate review: error is reversible only when, considering all the facts peculiar to the particular case under scrutiny, it is reasonably probable that a result more favorable to the appellant would have been reached if the error had not been committed. 3 Fla.Jur.2d 499; Stecher v. Pomerory, 253 So.2d 421, 422 (Fla.1971).
Here, no amount of emphasizing the financial responsibility of the defendant could counteract plaintiff husband's admission that he entered the intersection in which the collision occurred without knowing whether the traffic light was red or green, because he and his wife were talking and he was not paying attention to the light. Supplementing that damaging admission was the positive testimony of the defendant, the driver of the vehicle immediately behind the defendant, and the driver of a vehicle which had been stopped waiting for the light to change, that defendant entered the intersection on a green light.
That, together with the facts revealed to the jury concerning the relative economic positions of the parties (plai...
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Special v. Baux
...degree of probability that the result in the case would have been different. 23 The third line of cases, starting with Damico v. Lundberg, 379 So.2d 964 (Fla. 2d DCA 1979) (on rehearing), uses somewhat different language to put a finer point on the test of the probability of a different res......
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McIntyre v. McIntyre, AN-449
...of the statute requires reversal. This may or may not be the case. 4 As our sister court has recently observed in Damico v. Lundberg, 379 So.2d 964, 965 (Fla. 2nd DCA 1979), the "cardinal principle" of appellate review is that error is reversible only when, considering all the facts peculia......
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Saleeby v. Rocky Elson Const., Inc.
...showing of a reasonable probability of a result more favorable to the appellant if the error had not occurred, see Damico v. Lundberg, 379 So.2d 964, 965 (Fla. 2d DCA 1979), nor under a standard requiring a showing that the appellant might have obtained a more favorable result but for the e......
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Riggins v. Mariner Boat Works, Inc.
...that a result more favorable to the plaintiff would have been reached if this error had not been committed. See Damico v. Lundberg, 379 So.2d 964 (Fla. 2d DCA 1979). II. IMPERMISSIBLE CHALLENGE IN CLOSING Whether Mrs. Mullen negligently failed to stop at the intersection was a major issue a......
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The two-issue rule and itemized verdicts: walking the tightrope.
...wins? How much?"), a final word of warning: a completely different two-issue rule applies in federal court.[35] [1] Damico v. Lundberg, 379 So. 2d 964, 965 (Fla. 2d D.C.A. 1979); see also Katos v. Cushing, 601 So. 2d 612, 613 (Fla. 3d D.C.A. 1992) ("The test for harmful error is whether, bu......