McCoy v. Rudd, KK-308

• Decision Date: 16 February 1979
• Docket Number: No. KK-308,KK-308
• Citation: 367 So.2d 1080
• Parties: Charles McCOY and United Services Automobile Association, a Texas Corporation, Appellants, v. Andrew Frazier RUDD et al., Appellees.
• Court: Florida District Court of Appeals

Page 1080

367 So.2d 1080

Charles McCOY and United Services Automobile Association, a Texas Corporation, Appellants, v. Andrew Frazier RUDD et al., Appellees.

No. KK-308.

District Court of Appeal of Florida, First District.

Feb. 16, 1979.

E. Harper Field of Keen, O'Kelley, Field & Ellis, Tallahassee, for appellants.

Keith J. Kinderman and Rivers Buford, Jr., Tallahassee, for appellees.

MASON (Circuit Judge, Retired), Associate Judge:

This is an appeal from a final judgment of the Circuit Court of Jefferson County based upon a jury verdict awarding appellees the sum of $75,000.00 with interest thereon from March 3rd, 1973, at six percent per annum, to date of verdict.

The facts are as follows: On March 3rd, 1973, a fire on appellees Rudds' land destroyed three outbuildings and personal property therein. The buildings contained beehives, beehive equipment and certain tools. Subsequently the Rudds filed suit against appellant McCoy, a neighbor, and McCoy's insuror, appellant United Services Automobile Association, alleging that McCoy's son, Mark, caused the fire by negligently igniting a rocket on the Rudds' land which blasted off, the exhaust from which ignited grass on such land causing the fire to spread to the buildings burning the same and the contents therein. The Rudds claimed damages in excess of $100,000.00. In their complaint they lumped together their claims for loss to the buildings and for loss of contents. At trial they claimed $42,336.00 as replacement costs of the buildings and $95,420.00 for loss of contents. The jury returned a general verdict for $75,000.00, principal amount for such losses.

Appellants raise three points on appeal. The first point is that the trial court erred by admitting into evidence an estimator's testimony as to costs of replacement of the buildings based upon an architect's plans which were drawn at the owners' request and who desired that the buildings be reconstructed exactly as they existed prior to the fire, and who informed the architect as to the size and nature of such pre-existing buildings and of the materials used in their construction. There was evidence that Mr. Rudd had actively participated in the acquisition of such materials and in the construction of such buildings. We hold that such evidence was not hearsay under the circumstances as related and that the court did not err in admitting it. Furthermore, on the question of damages there were two issues, one as to damage for loss of the building and one as to damage for loss of contents. There was testimony as to loss of contents that such loss was more than the amount of the general verdict rendered, so that if the claim for cost of reconstruction of the buildings is completely disregarded, the verdict for $75,000.00 has support in the evidence before the jury. We therefore find that Point One is without merit. See Colonial Stores, Inc. v. Scarbrough, Fla., 355 So.2d 1181.

The second point raised by appellants is that the trial court erred in instructing the jury as to the effect of F. S. 590.08 and 590.13 (1977) upon the issue of negligence of the appellant McCoy in the premises. F. S. 590.08 reads as follows "590.08. Unlawful burning...