Kinne v. Burgin, s. 74--802
| Decision Date | 08 April 1975 |
| Docket Number | Nos. 74--802,74--803,s. 74--802 |
| Citation | 311 So.2d 695 |
| Parties | Gale KINNE, Appellant, v. Joseph K. BURGIN et al., Appellees. Joseph K. BURGIN et al., Appellants, v. Samuel L. KINNE, Jr., and Gale Kinne, his wife, Appellees. |
| Court | Florida District Court of Appeals |
Spence, Payne & Massington, Podhurst, Orseck & Parks, Miami, for kinne.
Stephens, Magill, Thornton & Sevier, and Ronald C. Willis, Jr., Miami, for Burgin, Aetna, and McCollister.
Before PEARSON and HENDRY, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
The facts of this case are identical to those set forth in this court's decision rendered in case numbers 74--599 and 74--611, styled Burgin et al. v. Merritt et al., Fla.App., 311 So.2d 688.
For the sake of brevity, we do not deem it necessary to repeat those salient facts in this opinion.
Suffice it to say that in this action, Samuel Kinne and his wife Gale, as plaintiffs, sued Burgin, McCollister, and their insurance company alleging negligent operation of a pick-up truck causing serious personal injuries to Samuel Kinne.
Gale Kinne's cause of action was based on her derivative claim for damages due to the loss of consortium of her husband.
The appellants have raised four points in their brief for our consideration. Appellees have raised a single point on cross-appeal concerning the damages awarded (zero dollars) by the jury to Gale Kinne. (The jury returned a verdict in favor of Samuel Kinne in the amount of $65,000 upon which the trial court entered final judgment.)
While we have not consolidated this case for appellate consideration with case numbers 74--599 and 74--611, the views expressed in our determination of those cases are relevant to this case.
Our decision therein necessarily answers points one, three and four raised by the appellants herein.
Since we determined that the court was correct in setting aside a jury conclusion that Kinne was 50% Negligent in causing the accident, it is obvious that the earlier judgment has no res judicata effect upon this case, and therefore the court was correct in disallowing an amendment to the appellants' answer which would have reflected the earlier adjudication, now set aside. Compare, Massachusetts Mutual Life Insurance Company v. Ambassador Concessions, Inc., Fla.App.1974, 293 So.2d 75.
A reading of our holding in appeals numbered 74--599 and 74--611 likewise answers the appellants' contention that the court erred in directing a verdict in favor of the appellees on the issue of Samuel Kinne's contributory (comparative) negligence, and in denying the appellants' motions for directed verdict and post-trial motion for a new trial.
The only point raised by the appellant in this case which requires further comment here concerns the testimony of the appellees' expert witness, W. Blake King, a mechanical engineer.
In our other opinion, we stated that no error was shown concerning the admissibility of King's expert testimony. We did indicate, however, that it was error to permit King to testify concerning an experiment he conducted in order to prepare himself to testify.
While we reaffirm that holding here, we do not think that the error which permitted King to testify about the experiment was reversible.
Our examination of the record before us reveals competent evidence, which was properly admitted, from which the jury...
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Cowart v. Kendall United Methodist Church
...supra; Fairbanks, supra; 4 see, Loftin, supra; Klosters Rederi A/S v. Cowden, 447 So.2d 1017 (Fla. 3d DCA 1984); Kinne v. Burgin, 311 So.2d 695 (Fla. 3d DCA 1975); Fejer v. Whitehall Laboratories, Inc., 182 So.2d 438 (Fla. 3d DCA 1966); Thieneman v. Cameron, 126 So.2d 170 (Fla. 3d DCA 1961)......
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Bach v. Murray, 93-2116
...So.2d 433 (Fla. 1st DCA 1979); Webber v. Jordan, 366 So.2d 51 (Fla. 2d DCA), cert. denied, 374 So.2d 102 (Fla.1979); Kinne v. Burgin, 311 So.2d 695 (Fla. 3d DCA 1975). Based upon the undisputed evidence of Bach's fractured nose and toes, plus her abrasions and contusions, we find that no re......
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MacCubbin v. Wallace, 955
...do not question. To the contrary, however, (although not noted by appellant) is the Florida appellate court's ruling in Kinne v. Burgin, 311 So.2d 695 (Fla.App.1975), where the woman's husband had also been injured in an automobile accident. The court held that the jury's zero award to the ......
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DeLong v. Wickes Co.
...the law or ignored the trial court's jury instructions on damages. Under these circumstances a new trial is mandated. Kinne v. Burgin, 311 So.2d 695 (Fla. 3d DCA 1975). Although the majority concedes that Richard DeLong's verdict was clearly inadequate, they conclude that the award of a $2,......