Margaret Ann Super Markets v. Scholl

• Decision Date: 25 November 1947
• Parties: MARGARET ANN SUPER MARKETS, Inc., v. SCHOLL et al.
• Court: Florida Supreme Court

34 So.2d 238

159 Fla. 748

MARGARET ANN SUPER MARKETS, Inc., v. SCHOLL et al.

Florida Supreme Court

November 25, 1947

On Rehearing Feb. 20, 1948.

Rehearing Denied March 16, 1948.

Appeal from Circuit Court, Broward County; Ross Williams judge.

Brown & Dean and Choate & Sinclair, all of Miami, and Berryhill & Leaird, of Fort Lauderdale, for appellant.

McCune Hiaasen, Fleming & Kelley, of Fort Lauderdale, for appellees.

CHAPMAN, Justice.

Mrs. Esther K Scholl and husband, Raymond S. Scholl, obtained a judgment in the Circuit Court of Broward County, Florida, against Margaret Ann Super Markets, Inc., in a tort action for the sum of $20,000. The judgment in behalf of Esther K. Scholl was for the sum of $18,000, while the sum of $2,000 was allowed the husband, Raymond S. Scholl, for the loss of consortium, money paid or obligated to be paid by him for medicine, hospitalization, nurses and physicians necessary to effect a cure of his wife, Esther K. Scholl. The wife sustained certain injuries as a result of a fall on February 22, 1944, while shopping in the defendant's place of business.

Count one of the amended declaration, in part, alleged that Esther K. Scholl was a customer in defendant's grocery store and while passing out the east entrance of the store was required to walk over a wet and slippery tile or cement floor. The slippery condition of the floor was caused by a block of ice negligently left near the passage way of customers leaving the east entrance of the store. The defendant knew or by the exercise of due diligence should have known the slippery condition of the floor and of which condition the plaintiff had no knowledge and slipped on the wet slippery tile floor thereby sustaining permanent injuries. At the time of the fall she was 48 years of age and in good health. As a result of the fall she sustained several injuries to her back rendering her unable to attend to her household duties. She has been confined to her bed a great part of the time and suffered a great deal. She contends her injuries are permanent and she will continue to suffer in the future. Her fall and injuries sustained are the direct result of the negligence of the defendant.

The second count of the amended declaration alleged the relation of husband and wife between Raymond S. Scholl and Esther K. Scholl and as a result of her said injuries Raymond S. Scholl was forced to expend considerable money for medicine, physicians and nurses in order to alleviate the suffering and effect a cure of his wife. In the future he will be obligated to expend other sums and that he has been deprived of the comfort, society and consortium of his said wife, and this condition will continue in the future as said injuries are permanent; and claimed damages in the sum of $5,000. The case was submitted to a jury on pleas of not guilty and contributory negligence. During the course of oral argument before this Court it was conceded that the sole question for consideration was whether or not the verdict in sum of $2,000 allowed to the husband and the further sum of $18,000 allowed to the wife for her injuries were excessive.

The record discloses that Mrs. Scholl at the time of the injury by occupation was a housewife and 48 years of age; the lower part of her backbone was fractured as a result of the fall in the defendant's store, and she suffered considerable pain for approximately fourteen months after the fall. When the case was tried she testified that it was difficult for her to sit through a church service because of pain and suffering due to the injury sustained in the fall. She was operated on during March, 1945, and 'improved greatly' and continued to improve up to the date of trial, but stated the end of the spine was 'tender.' Since the operation she has done her household work. She had some discomfort from the injury when the case was on trial in the lower court.

Dr. Peterson treated Mrs. Scholl and testified that an X-ray showed a fracture through the fourth segment of the sacrum and as a rule such fractures cause a good deal of pain. In December, 1944, an internal examination was made and the uterus, tubes and ovaries were in normal condition, but the cervix was eroded and the uterus turned back. Thirteen months after the injury, in March, 1945, the cervix was cauterized and the uterus corrected. A misplaced uterus may be caused by a fall or childbirth. She gradually improved thereafter. Fractures of this nature usually heal in three or four months.

Dr. Robinson, called as a witness for the defendant, testified that he examined the plaintiff in February, 1945, and examined the X-ray and it disclosed an incomplete fracture in that it did not go all the way through the bone. It was the physician's opinion that such a fracture as Mrs. Scholl had should heal in six or eight weeks. The witness examined Mrs. Scholl and found no evidence of the fracture about the end of the backbone as it had healed. The writer has diligently searched the record and has failed to find evidence of a permanent injury on the part of Mrs. Scholl as a result of the fall. There is evidence to support pain and suffering on her part for about fourteen months as a result of the fall. Her operation was performed in March, 1945, and she admits that since then she has done her household work except for heavy lifting and athletic activities.

We have ruled on the excessiveness of verdicts in many cases, some of which are, viz.:

$6,000 held excessive by $2,000 for permanent injuries to knee and other injuries causing severe suffering and requiring expenditure of large sums for doctors and hospital bills. Florida Motor Lines v. Bradley, 128 Fla. 392, 174 So. 863.

Award of $7,000 for injuries suffered in automobile collision was excessive and reduced by requiring remittitur, where jury had awarded $2,340 on former trial. Nelson v. McMillan, 151 Fla. 847, 10 So.2d 565.

Award of $11,000 damages for loss of automobile, loss of previously crippled leg, the ultimate healing of the stub of which was problematical, pain and suffering, medical expenses, cost of an artificial leg, and permanent disability was excessive, and judgment affirmed only upon condition of remittitur of $2,000. Gaynon v. Statum, 151 Fla. 798, 10 So.2d 432.

Verdict of $5,000 to 68 year old man, whose earning capacity ranged from $25 to $35 per month, for injuries including right fracture of skull, fracture of right shoulder, sprained ankle and lacerations of right leg, requiring doctor and hospital bills of $261.55, was excessive by $2,000. McDougald v Imler, 153 Fla. 619, 15...