Kovacs v. Venetian Sedan Service, Inc.

• Decision Date: 05 February 1959
• Docket Number: No. 58-220,58-220
• Parties: Hugo KOVACS, Appellant, v. VENETIAN SEDAN SERVICE, INC., a Florida corporation, and E. N. McCorkindale, Appellees.
• Court: Florida District Court of Appeals

Page 611

108 So.2d 611

Hugo KOVACS, Appellant, v. VENETIAN SEDAN SERVICE, INC., a Florida corporation, and E. N. McCorkindale, Appellees.

No. 58-220.

District Court of Appeal of Florida, Third District.

Feb. 5, 1959.

Kelner & Lewis, Miami, for appellant.

Ross Williams, Miami, and Guion T. DeLoach, Coral Gables, for appellees.

CARROLL, CHAS., Chief Judge.

Appellant's suit against appellees for personal injuries resulted in a jury verdict in his favor for $5,000. On motion of the defendant for a new trial the court made the following order:

'After due consideration of defendant's motion for new trial, it is,

'Considered, Adjudged and Ordered:

'(1) Defendant's motion for new trial is hereby denied if the plaintiff shall within ten (10) days from this date file a remittitur in this cause remitting Three Thousand Dollars ($3,000.00) from the Five Thousand Dollars ($5,000.00) verdict and recovery and judgment herein, thereby making the recovery for the plaintiff in the sum of Two Thousand Dollars ($2,000.00).

'(2) In the event the plaintiff does not file such remittitur within ten days (10) from this date then defendant's motion for new trial shall stand granted and thereupon the defendant shall have a new trial in said cause.

'Done and Ordered, in Chambers, courthouse, Miami, Florida, this March 13th, 1958.'

On plaintiff's refusal to submit to the remittitur, that order by its own terms was converted into an order granting a new trial. Such an order is appealable. ¹

Section 59.07(4) Fla.Stat., F.S.A., requires the trial judge to indicate in his order the particular ground or grounds upon which he grants the motion for new trial, and limits review to a consideration of such grounds. ²

The order granting a new trial in this case did not recite or specify any grounds. The provision for the remittitur is an 'indication' that the court granted a new trial on the ground of excessiveness of the verdict.

A remittitur of an excess in a verdict, as an alternative to the granting of a new trial, is not an interference with the right to trial by jury, and does not amount to substitution by the court of its judgment for that of the jury. It only indicates an amount of recovery that the court considers excessive, and is a proper function of a court which is required by controlling law to consider the entire record and to administer right and justice thereon. Sewell v. Sewell, 91 Fla. 982, 109 So. 98; Malone v. Folger, 132 Fla. 76, 180 So. 522. But the excessiveness of a verdict which may prompt a remittitur is that which is capable of ascertainment from an examination of the record of the case. The rule was stated in De La Vallina v. De La Vallina, 90 Fla. 905, 107 So. 339, as follows:

'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.'

See, also, to the same effect, Elks Club of Tampa v. Adair, 95 Fla. 415, 116 So. 26; Smith v. Jackson County, 134 Fla. 354, 183 So. 738.

It can not be said that excessiveness of the verdict clearly appears from the record in this case. There was evidence of considerable out-of-pocket expenses, of pain and suffering, illness, aggravation of other illnesses, disability, and loss of earning capacity.

The question of proximate causation of resultant illnesses and...