Franklin v. Dade County

• Decision Date: 20 January 1970
• Docket Number: Nos. 69-222,69-223,s. 69-222
• Citation: 230 So.2d 730
• Parties: Emmett FRANKLIN, Appellant, v. DADE COUNTY, a political subdivision of the State of Florida, Appellee. Judy A. SHULER and her husband, Robert Shuler, et al., Appellants, v. DADE COUNTY, a political subdivision of the State of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 730

230 So.2d 730

Emmett FRANKLIN, Appellant, v. DADE COUNTY, a political subdivision of the State of Florida, Appellee.

Judy A. SHULER and her husband, Robert Shuler, et al., Appellants, v. DADE COUNTY, a political subdivision of the State of Florida, Appellee.

Nos. 69-222, 69-223.

District Court of Appeal of Florida, Third District.

Jan. 20, 1970.

Rehearing Denied Feb. 17, 1970.

Colson & Hicks, Podhurst & Orseck, Miami, for appellants.

West & Goldman, Miami, Joe N. Unger, Miami Beach, for appellee.

Before CHARLES CARROLL, BARKDULL and HENDRY, JJ.

CHARLES CARROLL, Judge.

These two actions arose from a collision which occurred at the intersection of U.S. Highway No. 1 and Southwest 144th Street in Dade County, between a 1955 Chevrolet being driven north on U.S. 1 and a Dade County police car proceeding west on the intersecting cross street, the latter being controlled by a stop sign. Benjamin Franklin, aged 19 years, who was driving the Chevrolet, was killed. His father, Emmett Franklin, sued Dade County (and other defendants who were eliminated from the cause prior to trial) under the wrongful death statute, § 768.03, Fla.Stat., F.S.A. In a separate action Judy A. Shuler, aged 20 years, who was a passenger in the Chevrolet, sued Dade County (and other defendants who were eliminated from the cause prior to trial) for damages for personal injuries. She was joined therein by her then husband Robert Shuler (from whom she became divorced prior to trial), who claimed derivative damages. There were two police officers in the county car. The one who was driving was killed.

As the basis for seeking damages claimed to have been caused by negligence of the defendant's driver, each of the complaints alleged the following:

'4. That on or about May 7, 1967, at approximately 3:10 a.m., Paul Gotthardt Anderson, Jr., while acting in the scope and course of his employment for the Public Safety Department, Dade County, Florida, and while operating his police vehicle in a negligent, careless and reckless manner in a westerly direction on S.W. 144th Street, Dade County, Florida, ran the stop sign controlling traffic on said S.W. 144th Street, and violently collided with a motor vehicle proceeding in a northerly direction on U.S. Highway No. 1 causing * * *.'

In answer to each of the complaints the county admitted that its vehicle was being driven by a police officer in the scope and course of his employment for the county, denied negligence and pleaded contributory negligence.

The two actions were consolidated, and trial thereof was had before a jury. At the close of the plaintiffs' case, and again after both sides had rested the defendant moved for directed verdicts. The motion was granted as to the derivative damage claim of Robert Shuler, who did not appear at the trial, and on whose behalf no evidence of loss was presented. Ruling on the defendant's motion for directed verdicts was reserved as it related to the other plaintiffs, and the cause was submitted to the jury on the issue of negligence. For want of sufficient evidence relating thereto, the pleaded issue of contributory negligence was not submitted to the jury. Separate verdicts were rendered in favor of the plaintiffs, and judgments were entered on the verdicts.

Timely post trial motions included a motion of the defendant county, under Rule 1.480(b) RCP, 30 F.S.A., for entry of judgments in its favor in accordance with the prior motions for directed verdicts. The trial court granted that motion and entered judgment in favor of the defendant Dade County in both cases. These appeals were filed therefrom by the respective plaintiffs.

The theory on which the trial court granted the defendant's motion for judgments after verdict was that the evidence presented by or on behalf of the plaintiffs was insufficient to establish a prima facie case of negligence of the driver of the county vehicle.

In Whitman v. Red Top Sedan Service, Inc., Fla.App.1969, 218 So.2d 213, 215, this court said:

'A trial court's consideration of a defendant's motion for directed verdict is governed by a rule as stated by the Supreme Court in Mullis v. City of Miami, Fla.1952, 60 So.2d 174, 176, viz.: 'The court should not direct a verdict for the defendant, unless it is clear that there is no evidence whatever adduced that could in law support a verdict for plaintiff.' See also Chambers v. Loftin, Fla.1953, 67 So.2d 220, 221; Cadore v. Karp, Fla.1957, 91 So.2d 806; Paikin v. Beach Cabs, Inc., Fla.App.1966, 187 So.2d 93, 94; Guerriero v. Adams, Fla.App.1966, 190 So.2d 432, 433. That same rule applies when ruling has been reserved and the court has for consideration a defendant's motion after verdict for judgment based on the motion for directed verdict. This is so because under the present practice, provided for by rule 1.480 RCP, the ruling made is a deferred ruling on the motion for directed verdict. A substantially similar rule was held to govern the trial court in disposing of a motion for judgment notwithstanding the verdict under the former practice. See Deese v. White Belt Dairy Farms, Inc. v. Fla.App.1964, 160 So.2d 543; Smith v. Peninsular Insurance Company, Fla.App.1966, 181 So.2d 212 (19 A.L.R.3d 1326); Love v. Adams, Fla.App.1967, 194 So.2d 55.'

On review of these judgments, which are based on the granting of the defendant's deferred motions for directed verdicts, we are required to observe the rule as announced in Rodi v. Florida Greyhound Lines, Fla.1952, 62 So.2d 355, and numerous other Florida appellate decisions, that the reviewing court should consider the evidence presented in the cause in the light most favorable to the plaintiffs, disregarding conflicts in the evidence and indulging in plaintiffs' favor every reasonable intendment deducible therefrom. See Hardware Mutual Casualty Co. v. Tampa Electric Co., Fla.1952, 60 So.2d 179, 40 A.L.R.2d 1293; Brightwell v. Beem, Fla.1956, 90 So.2d 320, 322; Guhman v. Florida Power & Light Company, Fla.App.1962, 139 So.2d 749, 750; Guerriero v. Adams, supra, Fla.App.1966, 190 So.2d 432.

On so considering the evidence presented by and on behalf of the plaintiffs, with the benefit of intendments reasonably deducible therefrom, we hold that the able trial judge was in error in concluding, as it was essential to do in granting the deferred motion for directed verdicts and the judgments for defendant, that there was no evidence adduced sufficient in law to support the verdicts which the jury rendered for the plaintiffs.

An eye witness to the accident, a man named Andy Aaron, testified that as he was driving north on U.S. 1 in the right-hand lane of the two northbound traffic lanes, at a speed of 35 to 40 miles per hour, returning to his home in Coconut Grove after having attended a party, a car pulled onto the highway ahead of him from a drive-in theatre; that the car accelerated to a speed of 40 to 45 miles per hour and so proceeded in the right-hand lane, and at the time of the accident was ahead of him a distance of between 150 and 200 yards; that as the car ahead of him reached 144th Street he saw the lights of the other car involved in the collision before the two cars came together, and then the lights went out; that he drove past the intersection after the collision, parked his car and returned on foot to the scene. Aaron testified that he did not hear any (police car) siren or see any red light; and testified that his car windows were open ('down') and that his radio was not on.

One of the investigating officers, Bera Pitts, a deputy sheriff, testified that he was on duty in another police car at the time of the accident; that he received a radio message from his supervisor to the effect that a police officer had been killed at the intersection in question 'as a result of a high-speed chase'; that 'we' (that is, Pitts and his companion officer) first apprehended the people whom the police car was reported to have been chasing, and then proceeded to the scene of the accident, arriving there at 3:17 o'clock; and that he assisted in the investigation. He further testified that the speed limit on U.S. 1 was 45 miles per hour; that the intersecting street was controlling by a stop sign; and that at the time of the accident the street was dry and the weather clear.

The nature and extent of the damage to the cars, as revealed by the evidence including photographs, was such as to demonstrate that the collision was one of considerable, if not great force. The front and right corner of the Chevrolet and the left front corner of the police car met. From the photographs in evidence, the testimony of the investigating officer and the markings made by him on the surveyor's sketch of the intersection area, it was disclosed that as a result of the impact the Chevrolet was propelled, almost directly to the left from its line of travel, a distance equivalent to the width of five traffic lanes. That distance was made up of the left-hand northbound traffic lane of U.S. 1, the portion of the intersection consisting of the distance between the northbound and the southbound traffic lanes, which was shown by the survey to be more than the width of two traffic lanes, the inside southbound traffic lane, and well into the far or outer southbound traffic lane. In reaching that point the Chevrolet left intermittent marks which the investigating officer described as 'skip marks,' and of which marks he said: 'They appeared as though the car (Chevrolet) were bouncing.' The police car continued through the intersection, generally in line with the intersecting cross street, coming to rest slightly north of the Chevrolet, partly on and partly beyond the western lane for southbound traffic on U.S. 1. In proceeding across the intersection after the impact the police car left gouge marks, as to which the officer stated: 'There was gouge marks in the asphalt in the direction running similar to this from approximately here like this (indicating).'...