Malcolm v. Patrick

• Decision Date: 08 August 1962
• Docket Number: No. 2337,2337
• Parties: Ida Ruth MALCOLM, Appellant, v. James R. PATRICK, Appellee.
• Court: Florida District Court of Appeals

Page 188

147 So.2d 188

Ida Ruth MALCOLM, Appellant, v. James R. PATRICK, Appellee.

No. 2337.

District Court of Appeal of Florida, Second District.

Aug. 8, 1962.

Rehearing Denied Sept. 6, 1962.

John A. Sutton of Sutton & Brown, Orlando, for appellant.

William Berson of Berson, Barnes & Inman, Orlando, for appellee.

KANNER, Acting Chief Judge.

The negligence action from which this appeal arises was brought by plaintiff, appellant here, against the defendant-appellee whose automobile, driven by his minor son, Larry, age 16, ran upon a sidewalk and struck plaintiff from behind as she was walking. The defense asserted was that the minor son suffered a lapse of consciousness or blackout which caused him to lose control of the automobile and that this loss of consciousness at the crucial time refuted the charge of negligence.

Verdict in the amount of $16,720 was returned by the jury for the plaintiff; but the trial judge, upon reconsideration entered the appealed order setting aside the jury verdict and granting motion for new trial made by defendant. ¹ From the footnoted order, it appears that the premise of the court in granting the motion was that the charge concerning loss of consciousness was without evidentiary support and constituted harmful error not cured by the jury charges as a whole.

Plaintiff urges that, under a defense of loss of consciousness, it is necessary for the charge to comprehend the principle of foreseeability as an essential part of the law by which such a defense can stand.

The court is limited on the appeal to considering the propriety of the ground stated in the order for new trial and must found its decision upon a determination of whether or not the stated ground is sufficient. Section 59.07(4), Florida Statutes, F.S.A. See also Braddock v. Seaboard Air Line Railroad Company, Fla.1955, 80 So.2d 662.

In this country, by the great weight of authority, the rule is that neither negligence nor gross negligence is chargeable against the operator of a motor vehicle who, while driving, becomes suddenly stricken by a fainting spell or loss of consciousness from an unforeseen cause and is unable to control the vehicle. See Annotation, 28 A.L.R.2d 12, section 15, page 35. Thus it is indicated that a loss of consciousness while driving is a complete defense if such loss was not foreseeable. See 5A Am.Jur., Automobiles and Highway Traffic, Section 223, pages 365, 366.

Pronouncements have been made in Florida concerning a sudden loss of consciousness by a vehicle operator and its effect upon asserted negligence. In Baker v. Hausman, Fla.1953, 68 So.2d 572, 573, the Supreme Court, in speaking of physical impairment as a defense in a negligence action, said that, 'In jurisdictions where the courts have been confronted with the question they have generally held that negligence, much less gross negligence or wanton misconduct will not be imputed to one who suddenly 'blacks out', faints or suffers a sudden 'attack or stroke,' loses consciousness and control of his car causing injury to himself or his guest without premonition or warning of his condition.' The above statement is quoted in the case of Bridges v. Speer, Fla.1955, 79 So.2d 679, with the court going on to indicate that by the general trend of the cases the pivot upon which the question turns is knowledge of one's unfitness to drive. The court then commented, 'It is not even simple negligence if one has a sudden attack, loses control of his car and causes an accident if he had no premonition or warning. In such event the very foundation of negligence--knowledge and hence foreseeability--is absent. Our cases seem to hold, however, that where one has notice or knowledge of the existence of a physical impairment which may come on suddenly and destroy his power to control an automobile, it is negligence to an extreme degree for such person to operate such vehicle.' Accord: Williams v. Frohock, Fla.App.1959, 114 So.2d 223. Hence the loss of consciousness is a good defense if there was no premonition or warning.

Since interpretation of the evidence is an issue here, the testimony will be reviewed. That which concerns the defense interposed is not in dispute. It was given by three doctors and the minor son. We summarize this testimony is some detail in order to delineate more clearly the facts concerning the physical condition of defendant's son.

A Dr. Sutter, the first physician to see Larry following the accident, testified that Larry was not able to tell all the details of the accident and could not tell him what occurred between the time he was in the road until he hit the woman, that there was a lapse of memory by Larry for a short while when he went onto the sidewalk. The boy's mother, he continued without objection, had indicated that Larry had been having some type of spells for about a year, during which times he would stare into space and would not answer any questions, then would shake himself and seem to be straightened out after about two seconds. She recalled three such attacks. Larry denied to Dr. Sutter that he had knowledge of any attacks at all except that he had dizzy spells off and on for at least a year's time. Dr. Sutter arrived at a diagnosis of petit mal epilepsy through talking with the boy himself.

Testimony of Dr. Fessenden, a psychiatrist to whom Dr. Sutter referred Larry, was that from his examination, he had been led to conclude that Larry had petit mal epilepsy. He described this ailment as a form of epileptic seizure involving a short convulsive sensation in which the patient loses consciousness for a very short period of time, varying from 'flash' duration to a second or two, depending upon the individual pattern of petit mal, sometimes with warning and sometimes not. He related without objection the mother's account that for the past two years, though she did not realize anything was wrong, in speaking to Larry he would at times not answer and shortly after would give the answer. Larry's own version, said Dr. Fessenden, was that he had no knowledge of having had any trouble and that he had no memory of anything between the time he was driving along the road and the time he hit the woman. In the opinion of that witness, the boy definitely has petit mal and had a petit mal seizure.

The deposition of a Dr. Gant set out that he was treating Larry Patrick at the time of the deposition in 1960 and had been treating him since September, 1958, seeing him once every two or three weeks during that time. Dr. Gant is a private medical practitioner in Tennessee, with emphasis upon the area of psychiatry. His account of Larry's report to him was that up to the time of the accident he had not had an attack. Dr. Gant responded under questioning that it was probably and likely that this was Larry's first attack, that there was nothing obtained from him pointing to a prior history of epilepsy. The seizures subsequent to the accident, said Dr. Gant, occurred one or two a day or one or two a week, according to information obtained from the boy's grandmother and admitted by Larry.

By Larry's deposition, before the day of the accident he had not had any spell, attack, loss of consciousness, or loss of memory but only a dizzy spell now and then, nothing such as this; and he had never before been treated by any physician for any attacks or blackouts or spells of that nature. When questioned as to frequency of the attacks since the accident, he replied that he had one or two additional blackout spells a week or as many as three or four a day but not as heavy as 'that one,' that to his knowledge he had never had any such attack preceding the automobile accident. He explained his dizzy spells prior to the time of the accident as 'not really dizzy spells but you know, like you would be sitting down somewhere and stand up quick and kinder get dizzy for a minute, nothing abnormal or strange. Sometimes we all have dizzy spells and feel kinder funny sometimes, but other than that, I had nothing.' He explained that there was no regularity at all but that if he had been bending over or straining or something like that and stood up quickly he might get a little bit dizzy. Larry, by his testimony, was advised following the accident not to drive an automobile, and he relinquished his driver's license.

We have indicated the prevailing rule in other jurisdictions and the rule which has been enunciated in this state. We find no case in Florida which bears factual similarity to the instant one, but we cite three cases from other state jurisdictions annotated in 28 A.L.R.2d 12, pages 40, 41, which, though not factually parallel, have an aspect of relationship in that they concern dizziness and epilepsy.

The first of these cases is Soule v. Grimshaw, 1934, 266 Mich. 117, 253 N.W. 237. The evidence in that case revealed that, just before the accident, the defendant slumped...