Kuhn v. Telford

• Decision Date: 13 March 1959
• Docket Number: No. 664,664
• Citation: 115 So.2d 36
• Parties: Leslie A. KUHN, Eugene A. Van Voorhis, and Russell H. Kuhn, Appellants, v. James Walter TELFORD, Appellee.
• Court: Florida District Court of Appeals

Page 36

115 So.2d 36

Leslie A. KUHN, Eugene A. Van Voorhis, and Russell H. Kuhn, Appellants, v. James Walter TELFORD, Appellee.

No. 664.

District Court of Appeal of Florida, Second District.

March 13, 1959.

On Rehearing Aug. 28, 1959.

Rehearing Denied Sept. 23, 1959.

James C. Paine, of Jones, Adams, Paine & Foster, West Palm Beach, for appellants.

Joel T. Daves, of Paty, Downey & Daves, West Palm Beach, for appellee.

SHANNON, Judge.

This is an appeal by the defendants from a final judgment against them in a negligence action. The accident from which this action arose occurred on the afternoon of February 22, 1955 while the plaintiff was proceeding on a through street and the defendants' truck was coming from a stop street in the municipality of Belle Galde. The plaintiff maintains he was traveling at a speed of twenty to thirty-five miles per hour; whereas, the defendant Russell Kuhn testified that the plaintiff was traveling at thirty or thirty-five miles per hour. An ordinance of the municipality of Belle Glade provides a maximum speed at the point of the accident of twenty-five miles per hour. The defendant truck driver testified that he had stopped before entering the intersection and had traveled from three to five feet into the plaintiff's lane of traffic at the moment of the accident, at which time he was going at a speed of not more than four miles an hour. The plaintiff saw the defendant's truck from some distance away; whereas, the defendant did not observe the plaintiff's car until the collision or immediately prior thereto. Neither driver's view of the other was obstructed.

The first trial of this case before a jury resulted in a verdict for defendant, which was set aside and a new trial granted by the trial judge. On appeal to the Supreme Court the action of the trial judge in granting a new trial was affirmed. This appeal is from the final judgment entered in the second trial of the case.

There was originally a question of whether or not the notice of appeal to this court was in such form as to give this court jurisdiction. However, after reviewing the authorities on the question we have decided that this court does have jurisdiction.

The defendants have posed seven questions on this appeal, but in view of the fact that this case must be reversed, we will deal with only two of them in this decision. The defendants' first question is whether or not the court erred in denying their motion for a mistrial when the plaintiff's attorney, without the necessary preliminaries, asked, on his voir dire examination of the jury, 'Do any of you own any stock in or have any interest in any insurance company?' and 'Do any of you work in any way for an insurance company?' Defendants moved the court for a mistrial after the jury had been sworn. Defendants' counsel made no objection at the time these questions were asked.

There are several decided cases in Florida touching upon the question we have here. The rationale of such cases had their origin in a concurring opinion of Mr. Justice Brown in Ryan v. Noble, 95 Fla. 830, 116 So. 766. While it is not necessarily correct that the concurring opinion in Ryan v. Noble, supra, is the law of Florida, since that decision it has been cited quite frequently by our Supreme Court and more or less acquiesced in, although our Supreme Court has avoided a definitive procedure in broaching the insurance-interest subject of prospective jurors. But we do not have to decide whether or not it was reversible error to ask these questions in view of the fact that counsel for defendants waited until after the jury had been sworn before making his motion. Under these circumstances the trial court committed no error in refusing the motion.

On their second question the defendants maintain that the trail court was in error in granting the plaintiff's motion for directed verdict on the question of liability. There is a distinction between situations where a trial judge can properly direct a verdict and where he can properly grant a new trial. Although a trial judge may set aside a verdict and grant a new trial in order to give effect to the manifest weight of the evidence and the justice of the cause without denying the right of trial by jury, he cannot direct a verdict in the same instance if there exists a view of the evidence which the jury might lawfully take, favorable to the adverse party, and which could result in a verdict for him. A party moving for a directed verdict admits not only the facts shown by the evidence, but every reasonable inferece favorable to his opponent that the jury might fairly and reasonably arrive at from the evidence. And, of course, it is for the jury to determine all questions of conflicting evidence. In a well-considered opinion Mr. Justice Drew in Hilkmeyer v. Latin American Air Cargo Expediters, Fla.1957, 94 So.2d 821, 824, stated:

'The most recent expression of this Court on the general subject is found in New Deal Cab Co. v. Stubbs, Fla.1956 90 So.2d 614, 615. There we said:

"Where the entire evidence is of such probative force that the trial court, to give effect to the mainfest weight of the evidence and the justice of the cause, should properly have granted a new trial if a verdict had been rendered for the defendant, the trial court will not be held in error for directing a verdict for the plaintiff. American District Electric Protective Co. v. Seaboard Air Line Ry. Co., 139 Fla. 451, 190 So. 820, 823, and cases there cited.' (Emphasis supplied.)

'We have re-examined the above quoted language in that case and the authorities cited. It was not necessary to the determination of the cause and was therefore obiter dicta. The [italicized] language correctly states the conditions under which a new trial may be properly awarded but the language which follows is used too loosely. It is important to make a distinction between situations where a trial judge can properly direct a verdict and situations where he can properly grant a new trial. 'The considerations and legal principles that guide the judicial discretion in directing a verdict and in granting a new trial on the evidence are not the same.' Gravette v. Turner, 1919, 77 Fla. 311, 81 So. 476, 477; Anderson v. Southern Cotton Oil Co., 1917, 73 Fla. 432, 74 So. 975, L.R.A.1917E, 715; Florida East Coast Ry Co. v. Hayes, 1914, 66 Fla. 589, 64 So. 274. The reasons for and a clear exposition of the distinctions appear extensively presented in Gravette v. Turner, supra, one of the cases cited as authority in the New Deal Cab Co. case. We clearly said in the Gravette case that where there was substantial evidence tending to prove the issue, it 'should have been submitted to the jury for their finding on the facts, and not taken from them to be passed upon by the judge as a question of law.' 77 Fla. 317, 81 So. 478. We also said.

"Even though a verdict should not be directed on the evidence in deference to the organic right to a jury trial and to the statute regulating the subject, yet if on motion for a new trial 'where there is conflict in the testimony, it is within the province and power of the court to set aside a verdict which does not reach a substantially just conclusion in cases where the conflicts are of such character and the circumstances of such nature as to give just ground for the belief that the jury acted through prejudice, passion, mistake or any other cause which should not properly control them. This power exists in the court. In exercising it the court does not encroach upon the province of the jury, for the reason that it does not conclusively settle facts in the form of a verdict, but only gives another jury the opportunity of so doing, and of correcting what appears to be a mistake.'' 77 Fla. 316, 81 So. 478.

'The dividing line (a grey area at best) between judge and jury in situations like this would be totally indistinguishable from many other aspects of the more general problem of facilitating jural disposition of cases, if it were not for the requirement in our Constitution that 'The right of trial by jury shall bee secured to all, and remain inviolate for-ever.' Florida Constitution, Declaration of Rights, § 3, F.S.A. * * *.'

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