Hendricks v. Dailey

Decision Date13 March 1968
Docket NumberNo. 36590,36590
Citation208 So.2d 101
CourtFlorida Supreme Court
PartiesWayne HENDRICKS and Leonard Sealey, d/b/a Wayne & Leonard Auto Parts, Petitioners, v. Frank L. DAILEY, Individually, and as father and Next Friend of Frank L. Dailey, II, a minor, Respondents.

Robert P. Gaines, of Beggs, Lane, Daniel, Gaines & Davis, Pensacola, for petitioners.

Lefferts L. Mabie, Jr., of Hopkins & Mabie, Pensacola, for respondents.

THORNAL, Justice.

By petition for a writ of certiorari we are requested to review a decision of a District Court of Appeal because of alleged conflicts with prior decisions of this Court. Fla.Const. Art. V, Sec. 4, F.S.A.; Dailey v. Hendricks, 200 So.2d 566 (1st D.C.A.Fla.1967).

We must again consider the test which controls the propriety of an order of a trial judge granting a motion for a new trial.

Petitioner Hendricks owned a racing stock car. It was driven by respondent Dailey, Sr. Petitioners Hendricks and Sealey owned and operated a wrecker which was used to service the racing cars. During the last race of a meet, the racing car developed mechanical failures. Petitioners' wrecker was brought in to tow it away. Respondent Dailey, Jr., eleven years old, apparently climbed on the racer. It is claimed that when the wrecker started the tow, Dailey, Jr. was thrown to the ground and severely injured. Dailey sued Hendricks and Sealey and recovered a jury verdict for damages for injuries to his minor son.

During the trial at the close of plaintiffs' case, and again at the close of all of the evidence, the defendant moved for a directed verdict. The judge reserved his ruling and let the case go to the jury. The verdict for plaintiffs resulted. After verdict, the defendants moved for a judgment notwithstanding the verdict and alternatively for a new trial. The trial judge granted the motion to set aside the verdict and to enter a judgment for the defendants notwithstanding the verdict. He did this on the ground that the defendants were entitled to a directed verdict at the close of the evidence. Alternatively, the order provided that if the judgment notwithstanding the verdict should be reversed on appeal, then the defendants' motion for a new trial was granted on the grounds that the verdict was 'contrary to the manifest weight of the evidence,' and on the further ground that the evidence failed to show the driver's actual or constructive knowledge of the dangerous position of the minor plaintiff.

On appeal, the District Court reviewed the record evidence and reversed the post-trial order of the trial judge. He was directed instead to enter a judgment for the plaintiffs in accord with the jury's verdict. In doing so the District Court reviewed the rules governing the entry of judgments notwithstanding the verdict. We find no basis on which to differ with their summarization and application of these rules. Dailey v. Hendricks, supra.

Our problem, however, derives from the fact that in reversing the trial judge and directing entry of a judgment, the District Court apparently overlooked the alternative order granting the new trial because the verdict was 'contrary to the manifest weight of the evidence.' The rules governing entry of a judgment notwithstanding a verdict differ materially from those which control the granting of a new trial. In the case at bar, the standards which control the former were made equally applicable to the latter. It is at this point that we reach a line of cleavage with the decision under review.

The District Court here found 'that there was sufficient competent, substantial evidence at the trial to support the jury's verdict for the plaintiffs,' and that the plaintiffs' side of the case was not 'essentially devoid of probative evidence.' These standards were applied in reversing the order granting the new trial as well as the order granting judgment notwithstanding the verdict. In applying these tests to the granting of the new trial the decision of the District Court is clearly in conflict with our opinion in Cloud v. Fallis, 110 So.2d 669 (Fla.1959).

We have consistently acknowledged that an order granting a new trial may be reviewed on the record to ascertain whether there is present a detectable abuse of judicial discretion. Russo v. Clark, 147 So.2d 1 (Fla.1962). However, the opinion of the trial judge is...

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61 cases
  • Jackson By and Through Whitaker v. Hertz Corp.
    • United States
    • Florida District Court of Appeals
    • December 4, 1990
    ...First, a court reviewing a judgment entered on a directed verdict should not engage in weighing conflicting evidence. Hendricks v. Dailey, 208 So.2d 101 (Fla.1968). Second, the majority holding stands for the cataclysmic proposition that a court may find a defendant not negligent, as a matt......
  • Snow v. Nelson
    • United States
    • Florida District Court of Appeals
    • May 1, 1984
    ...court as a matter of law. It is only in the absence of any evidence that a court should direct a verdict for a defendant. Hendricks v. Dailey, 208 So.2d 101 (Fla.1968); Dandashi v. Fine, 397 So.2d 442 (Fla. 3d DCA 1981). I would reverse and reinstate the jury 1 There is, thus, little solace......
  • State Farm Fire and Casualty Co. v. Higgins
    • United States
    • Florida District Court of Appeals
    • January 3, 2001
    ...rests on appellants who seek to overturn such a ruling, and any abuse of discretion must be patent from the record. See Hendricks v. Dailey, 208 So.2d 101, 103 (Fla.1968); Russo v. Clark, 147 So.2d 1, 3-4 (Emphasis supplied) (footnote omitted). In Suarez-Burgos, we affirmed the trial court'......
  • Brown v. Sims
    • United States
    • Florida District Court of Appeals
    • January 31, 1989
    ...Idy Corp. v. Fenton, 454 So.2d 13 (Fla. 3d DCA 1984); Dandashi v. Fine, 397 So.2d 442 (Fla. 3d DCA 1981), (citing Hendricks v. Dailey, 208 So.2d 101 (Fla.1968)); Behar v. Root, 393 So.2d 1169 (Fla. 3d DCA 1981); Laird v. Potter, 367 So.2d 642 (Fla. 3d DCA), cert. denied, 378 So.2d 347 (Fla.......
  • Request a trial to view additional results
1 books & journal articles
  • Appellate standards of review.
    • United States
    • Florida Bar Journal Vol. 73 No. 11, December - December 1999
    • December 1, 1999
    ...v. Barfield, 732 So. 2d 1202 (Fla. 4th DCA 1999). 3) granting motion for judgment notwithstanding the verdict, see Hendricks v. Dailey, 208 So. 2d 101 (Fla. 1968); Duhlin v. Circle F Indus., 558 F.2d 456 (8th Cir. Competent substantial evidence standard: 1) determining the credibility of wi......

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