Grace v. Sondheimer, 71-2722.

Decision Date26 April 1972
Docket NumberNo. 71-2722.,71-2722.
Citation459 F.2d 946
PartiesElizabeth GRACE and John Grace, Plaintiffs-Appellants-Cross Appellees, v. Allen James SONDHEIMER and Avis Rent-A-Car System, Inc., Defendants-Appellees-Cross Appellants.
CourtU.S. Court of Appeals — Fifth Circuit

Herbert L. Heiken, Miami, Fla., Simons & Schlesinger, Hollywood, Fla., for appellants.

Richard M. Gale, Robert L. Dube, Knight, Underwood, Peters, Hoeveler & Pickle, Miami, Fla., for appellees.

Before PHILLIPS,* THORNBERRY and RONEY, Circuit Judges.

THORNBERRY, Circuit Judge:

This action arose out of an automobile accident involving plaintiff Elizabeth Grace, operator of a car owned by her husband plaintiff John Grace, and defendant Sondheimer, operator of a car owned by defendant Avis Rent-A-Car System, Incorporated (Avis). The jury, finding the defendants negligent, assessed Mrs. Grace's damages at $5,000 but failed to award anything to Mr. Grace for medical expenses or loss of consortium. Both parties appeal.

Plaintiffs first complain that the verdict in favor of Mrs. Grace was grossly inadequate. Mrs. Grace was a school teacher, earning $12,000 annually at the time of the accident, and there was evidence that she was forced to retire because of her injuries, which constituted a 30% disability. Testimony of numerous treating physicians indicated that Mrs. Grace suffered from a concussion, disc disease in her cervical and lumbosacral area, cervical spasms, posttraumatic depression, blurred vision, headaches, and pain in her hip and thigh. Defendants elicited proof, however, that Mrs. Grace did not choose to see a doctor until three weeks after the accident. All objective signs have since proven normal, and a court-appointed physician opined that Mrs. Grace was a malingerer and suffered from no more than a 5% disability. A film taken by a private investigator showed Mrs. Grace carrying on normal activities at a time when she claimed substantial loss of capacity. We find the evidence as presented to be more than sufficient to support the jury verdict.

Plaintiffs next urge that the jury award to Mr. Grace, or rather the lack thereof, was grossly inadequate in light of uncontradicted evidence of medical bills incurred by Mrs. Grace for which her husband was legally responsible.1 The rule in Florida is clear in this regard. It has been consistently held that,

A verdict upon a wife\'s claim necessarily requires a finding of liability to the husband where the evidence is clear that the husband has suffered damages.

Thieneman v. Cameron, 126 So.2d 170 (Fla.App.1961). See also Noll v. Byorick, 108 So.2d 67 (Fla.App.1959). In Dixon v. Wright, 214 So.2d 787 (Fla.App.1968), the rule, as it relates to facts similar to those of the instant case, was stated as follows:

In this case, the only claim for recovery of medical expenses attributable to the wife\'s injuries was in the husband\'s complaint. This was properly so since the only circumstances under which the wife might have recovered her medical expenses in her own right would be if she had in fact paid those expenses, or had obligated her separate estate to pay them. In the absence of such special circumstances, a husband is legally responsible for his wife\'s medical expenses and it is he and not his wife who is entitled to be compensated for them.

214 So.2d at 788. See also Loftin v. Anderson, 66 So.2d 470 (Fla.1953) (on petition for rehearing); Correll v. Elkins, 195 So.2d 27 (Fla.App.1967); Hatchell v. Hayes, 157 So.2d 855 (Fla. App.1963). There is present in the instant case uncontradicted evidence of medical expenses incurred by Mrs. Grace in connection with the accident in question. There is no evidence that Mrs. Grace actually paid these expenses or has obligated her separate estate to pay them. Under such circumstances, it is clear that Florida law requires a remand on the issue of Mr. Grace's damages in light of his wife's recovery.

Plaintiffs contend that the aforementioned principles require a reversal as to both plaintiffs on the issue of damages. Florida courts in cases in which it was impossible to determine whether medical expenses were erroneously included in the wife's award, have required a retrial of the issue of both the husband and wife's damages. E. g., Noll v. Byorick, supra. This principle is only applied, however, in order to protect the defendant from double liability for the medical expenses when it cannot be determined whether they...

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