Ingerson v. State Farm Mut. Auto. Ins. Co.

• Decision Date: 31 January 1973
• Docket Number: No. 72--567,72--567
• Citation: 272 So.2d 862
• Parties: F. Earl INGERSON, as Administrator and Personal Representative of Emma Duncan, Deceased, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al., Appellees.
• Court: Florida District Court of Appeals

Page 862

272 So.2d 862

F. Earl INGERSON, as Administrator and Personal Representative of Emma Duncan, Deceased, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al., Appellees.

No. 72--567.

District Court of Appeal of Florida, Third District.

Jan. 31, 1973.

Rehearing Denied Feb. 26, 1973.

Pettigrew & Bailey, Miami, for appellant.

Walton, Lantaff, Schroeder, Carson & Wahl and George E. Orr; Sherouse & Virgin, Miami, for appellees.

Before BARKDULL, C.J., and CHARLES CARROLL and HAVERFIELD, JJ.

CARROLL, Judge.

This action grew out of an automobile accident. The plaintiff's decedent Emma Duncan, who died as a result of injuries received therein, was a passengr seated in the rear seat of an automobile owned by the appellee Frank A. Talley and being driven by his wife the appellee Mary B. Talley, who was a daughter of the decedent.

The Talley automobile had been proceeding west on Northwest 119th Street in North Miami. The accident occurred at an intersection where traffic was controlled by a signal light. At the time involved, the light was green for traffic using Northwest 119th Street. It was late afternoon, becoming dark, and it was or had been raining. The driver Mary Talley, upon reaching the intersection, proceeded to make a left turn. An automobile driven by the defendant-appellee Carolyn Harring, proceeding east on Northwest 119th Street, struck the right rear side of the Talley vehicle, with the unfortunate result above noted.

At trial the court directed a verdict in favor of the defendant Harring and her insurer. That ruling imported the court concluded that upon no reasonable view of the evidence could the jury find in favor of the plaintiff against the defendant Harring, and thereby held as a matter of law said defendant was not guilty of negligence proximately causing or contributing to cause the collision.

Due to the status of the plaintiff's decedent as a guest passenger in the Talley automobile, plaintiff's complaint against the Talleys was predicated upon alleged Gross negligence of the driver Mary Talley, being the degree of negligence necessary to furnish a cause of action under the provisions of the guest passenger statute, § 320.59 Fla.Stat., F.S.A.

The collision occurred on June 13, 1967. The action was filed April 23, 1971. The jury trial was held on February 25, 1972. The guest passenger statute was repealed by an act of the legislature which became effective approximately ten days before trial of the case, ¹ a fact of which neither the trial court nor the parties appear to have been aware at the time of trial and judgment. At the trial, a jury charge on gross negligence was requested by the plaintiff and given by the court. The jury returned a verdict thereon in favor of the defendants Talley and their insurer.

A judgment was entered in favor of the defendant Harring and her insurer based on the directed verdict for those defendants. A separate judgment was entered for the defendants Mary Talley, Frank Talley and their insurer, based on the jury verdict. A timely motion for new trial was filed by the plaintiff, presenting grounds directed to both judgments. Prior to hearing on the motion it was amended by the plaintiff with leave of court by adding a ground contending the court erred by submitting the cause against the Talleys to the jury on the basis of gross negligence rather than on simple negligence of the driver Talley, after the guest passenger statute had been repealed. Thereafter the motion for new trial was denied, and the plaintiff appealed.

Having reviewed the evidence and considered the briefs and arguments, we hold the trial court did not commit error in directing a verdict in favor of the defendant Harring and her insurer. No useful purpose would be served by reciting the evidence here. Accordingly the judgment entered in favor of the defendant Harring and her insurer is affirmed.

We hold, however, that the judgment dated March 1, 1972, in favor of the defendant Mary Talley and Frank Talley and their insurer should be reversed, for the reason that after the legislature had repealed § 320.59 Fla.Stat., F.S.A. a cause of action was maintainable by the plaintiff on simple negligence against the driver Mary Talley and the car owner Frank Talley. Where the fact of repeal of the guest passenger statute while the cause was pending was brought to the attention of the court by plaintiffs' motion for new trial, a new trial between the plaintiff and the defendants Talley and their insurer should have been granted.

It is generally held that the law which is applicable to a case, as it exists at the time of trial and judgment, is controlling thereon. Subject to a possible exception not applicable here, where a statute or principle of law that is controlling or material to the merits of an action is repealed or the law otherwise is changed, during the pendency of the cause, the law as so changed then becomes...