Hardison v. Threets

• Decision Date: 11 December 1970
• Docket Number: No. 69--792,69--792
• Citation: Hardison v. Threets, 241 So.2d 694 (Fla. App. 1970)
• Parties: Damon HARDISON and Allstate Insurance Company, Appellants, v. Neal THREETS, as Administrator of the Estate of Dennis Ray Threets, a minor child, Deceased, Appellee.
• Court: Florida District Court of Appeals

Page 694

241 So.2d 694

Damon HARDISON and Allstate Insurance Company, Appellants, v. Neal THREETS, as Administrator of the Estate of Dennis Ray Threets, a minor child, Deceased, Appellee.

No. 69--792.

District Court of Appeal of Florida, Fourth District.

Dec. 11, 1970.

Frank R. Pound, Jr., and Leonard N. D'Aiuto of Howell, Kirby, Montgomery & D'Aiuto, Rockledge, for appellants.

S. Sammy Cacciatore, Jr., of Law Offices of James H. Nance, Melbourne, for appellee.

REED, Judge.

This is an appeal by the defendant Damon Hardison, and his insurer, Allstate Insurance Company, from an amended final judgment entered by the Circuit Court of Brevard County, Florida, on 27 October 1969.

The plaintiff in this case, Neal Threets, as administrator of the estate of Dennis Ray Threets, filed an amended complaint against the defendants alleging that on or about 6 January 1968 the defendant Damon Hardison so negligently operated his motor vehicle that he caused the same to run into and kill Dennis Ray Threets, the plaintiff's four-year-old son. The amended complaint alleged that the injury occasioned the decedent pain and suffering prior to his death and contained a claim for funeral expenses and loss of prospective estate. The answer denied liability and the cause went to trial before a jury.

There was no evidence produced on the claim for pain and suffering and no instruction on this claim was submitted to the jury. The only claim which the administrator presented to the jury was for funeral expenses and loss of prospective estate. The jury returned a verdict for $15,435.00. Appellee's brief concedes that the verdict represents funeral expenses in the amount of $435.00 and $15,000.00 as the loss of the decedent's prospective estate. The judgment appealed from was entered on the verdict.

The appellants' first point on appeal questions the propriety of two jury instructions. We conclude that this point is without merit and does not require discussion.

The appellants' second point questions the sufficiency of the evidence to support the jury verdict in the amount of $15,435. The facts relative to damages are summarized in appellee's brief as follows:

'The decedent was a four year old child in perfect health. He was outgoing, extremely friendly and was responsible for small chores around the house. His parents had planned a 'fine future' for him, which included, among other things, a good education. His life expectancy was 65 years, 34 days.'

In the trial court the appellants raised the issue of the sufficiency of the evidence to support the jury verdict by a motion for a remittitur or in the alternative a motion for new trial.

As we have indicated, the case was presented to the jury purely as an administrator's cause of action under F.S. 1967, section 768.02, F.S.A. Thereunder the administrator may recover the present value of the prospective earnings and savings which the evidence indicates the decedent could reasonably have been expected to have accumulated during his life expectancy after becoming of age and to have left to his heirs or beneficiaries at his death. Jacksonville Electric Co. v. Bowden, 1908, 54 Fla. 461, 45 So. 755, 757, 758; Florida East Coast Ry. Co. v. Hayes, 1914, 67 Fla. 101, 64 So. 504, 505; Ellis v. Brown, Fla.1955, 77 So.2d 845, 849. That which may be considered in measuring the recovery includes evidence of age, probable duration of life, habits of industry, means, business, earnings, health, skill, and reasonable future expectations. Jacksonville Electric Co. v. Bowden and Florida East Coast Ry. Co. v. Hayes, supra.

One might legitimately question whether the evidence can ever be said to provide a reasonable estimate for evaluating the loss of prospective estate where a child dies prior to having established any earning capacity whatsoever. In several cases, however, such recoveries have been allowed even in the absence of demonstrable earning capacities. See Miami Dairy Farms, Inc. v. Tinsley, 1934, 115 Fla. 650, 155 So. 850, and Burch v. Gilbert, Fla.App.1963, 148 So.2d 289.

We conclude that under the present state of the law, even though no earning capacity is proved, the jury is at liberty to make some award for loss of prospective estate, but the award must be reasonable under all the circumstances and is clearly subject to judicial review for excessiveness at both the trial and the appellate level. See McCormick on Damages, p. 362 where the author states:

'* * * there seems to be no state where a substantial degree of judicial control over the amount is not exercised both by way of instruction in advance to the jury as to the proper standards of damages and of revision of the amount, for excessiveness or inadequacy, on motion for new trial or an appeal.'

With respect to the quality of proof required to support a verdict for loss of prospective estate, a showing of probability as to the amount is not required and the later cases seem to require that the evidence do no more than furnish a reasonable basis for the amount decided upon by the jury. See Miami Dairy Farms, Inc. v. Tinsley and Burch v. Gilbert, supra. Compare Cudahy Packing Co. v. Ellis, 1932, 105 Fla. 186, 140 So. 918, which was a wrongful death suit brought by a dependent wherein the Florida Supreme Court stated that more than ordinary discretion may be allowed to the jury in assessing damages in such an action.

Our function then in reviewing the jury verdict against a charge that it is excessive is to determine whether the verdict, as a matter of law, is without a reasonable basis in the evidence. If so, this court has the duty to set the verdict aside or to order a remittitur. See Renuart Lumber Yards v. Levine, Fla.1950, 49 So.2d 97, 99; Burch v. Gilbert; Florida East Coast Ry. Co. v. Hayes, supra; and Gresham v. Courson, Fla.App.1965, 177 So.2d 33.

The verdict of $15,000.00 implies that over a period of sixty-five years the plaintiff's decedent would have accumulated an estate of something in excess of $133,000.00 based on 4% Compound interest and something in excess of $200,000.00 based on 5% Compound interest. There was no reasonable basis in the evidence in this record which would support a conclusion that the plaintiff's decedent would have accumulated and left either of those amounts at the end of his normal life expectancy, and the jury verdict which implies such reaches beyond the realm of permissible speculation.

We need not base our conclusion entirely on the implication of the jury verdict. The plaintiff's own attorney argued to the jury that the child might reasonably have accumulated at the end of his life expectancy $20,000.00 to $30,000.00. Assuming that $30,000.00 is a reasonable figure for the prospective estate of the decedent, and assuming further that the decedent had a life expectancy of fifty years rather than sixty-five years, the discount figure for $1.00 invested at 4% Compound interest would be .1407. Using this figure to reduce $30,000.00 to present value, we arrive at a value of $4,221.00 for the loss of the prospective estate.

Another approach to an analysis of the jury verdict which might be meaningful in this case is suggested by the opinion of the First District Court of Appeal in the case of Gresham v. Courson, supra. In that case the First District stated with respect to an award to parents for their pain and suffering for the wrongful death of an eleven month old child that if the verdict does not bear a reasonable relationship to the general trend of prior decisions, the verdict may be set aside and a new trial or a remittitur ordered. Taking this approach to analysis of the verdict before us the...