Gunn v. Filer, 59-278

• Decision Date: 14 January 1960
• Docket Number: No. 59-278,59-278
• Citation: 117 So.2d 247
• Parties: Willis GUNN and City of Miami, Appellants, v. Harry O. FILER, Appellee.
• Court: Florida District Court of Appeals

Page 247

117 So.2d 247

Willis GUNN and City of Miami, Appellants, v. Harry O. FILER, Appellee.

No. 59-278.

District Court of Appeal of Florida, Third District.

Jan. 14, 1960.

Rehearing Denied Feb. 5, 1960.

Wicker & Smith, Miami, and Stephen C. McAliley, Jacksonville, for appellants.

Ferrell & Young, Miami, for appellee.

PER CURIAM.

Affirmed.

HORTON, C. J., and PEARSON, J., concur.

CARROLL, CHAS., J., dissents.

CARROLL, CHAS., Judge (dissenting).

I am unable to agree with the majority judgment of affirmance, and feel impelled to dissent. This case grew out of an automobile accident, and the sole contention on the appeal is that the verdict is excessive. ¹

The appellee Harry O. Filer, who was the plaintiff below, sued the City of Miami, and Willis Gunn, the driver of a city truck involved in a collision with his automobile, seeking damages for personal injuries received in the accident, which he alleged resulted from Gunn's negligence. Following trial of the case before a jury, the plaintiff was awarded a verdict for $76,000. Motion for new trial was denied, and the defendants appealed from the judgment.

I am aware of the rule that an appellate court, in considering a verdict claimed to be excessive, should not invade the province of the jury to fix the damages, or of the trial court to review and approve the verdict, and 'substitute its own judgment for that of the jury without it appearing that the jury was inflamed by prejudice, bias, or other improper influences' (De La Vallina v. De La Vallina, 90 Fla. 905, 107 So. 339; Elks Club of Tampa v. Adair, 95 Fla. 415, 116 So. 26), and that a verdict should not be reduced or new trial granted on the grounds of its excessiveness 'unless it is manifestly so excessive as to shock the judicial conscience, or as to be indicative of prejudice, passion or corruption on the part of the jury,' or that the jury ignored or misconceived the evidence. 9 Fla.Jur., Damages, § 96; 23 Fla.Jur., New Trial, § 59. In the De La Vallina case (107 So. 339) it was said:

'In requiring the entry of a remittitur to correct an excessive verdict or judgment, the general rule seems to be that the amount of the excess must clearly appear from the record, and then, if on the whole showing made by the record it appears that the damages awarded by the jury are excessive, the court may require a remittitur for the amount of the excess on condition that the judgment stand for the balance, otherwise a new trial will be granted. McLean v. Spratt, 20 Fla. 515; Florida Ry. & Nav. Co. v. Webster, 25 Fla. 394, 5 So. 714; Postal Telegraph-Cable Co. v. Scott, 76 Fla. 336, 79 So. 767; Florida Southern Ry. Co. v. Steen, 45 Fla. 313, 34 So. 571; Standard Growers' Exch. v. Martin, 80 Fla. 864, 87 So. 54; 2 R.C.L. 278.'

While it is not necessary, for the purpose of this opinion, to discuss in detail the injuries and elements of damage, and the evidence as it related thereto, certain brief reference will be made to those items. In the accident, the plaintiff received some lacerations and bruises, and suffered a broken nose, but no other fractures. He also received a whiplash injury or cervical strain, and a lumbodorsal strain. He had symptoms incident thereto, including headaches, difficulty in sleeping and some trouble with the pupil of one eye. Upon the happening of the accident the plaintiff was hospitalized less than one day. His medication included aspirin, bufferin and milltown, but no narcotics were required to be administered.

At the time of the accident the plaintiff was an Air Force pilot who had previously been informed that he would shortly be separated from the service, as in fact he was thereafter. After the accident, and before being released, he flew three Air Force missions. By the time of the trial, which was more than a year after the accident, he was recovered from his injuries except for some neurological results of the sprains in the cervical and dorsal regions of the spine. Taken generally, the evidence showed that any residual injury should be dissipated within three years from the date of the accident. Evidence as to permanent injury was limited to the testimony of the plaintiff's treating physician, Dr. Ponder, that the plaintiff could expect, permanently, to have some symptoms referable to his back sprain. As to future medical expense, Dr. Ponder testified that if the plaintiff had such symptoms some medicines could be given and physiotherapy treatment should give some relief. For the purpose of this consideration it is unimportant that there was other medical evidence indicating the absence of permanent injury.

In addition, the verdict reflects the consideration of special damages, such as for...