De Mendoza v. Board of County Com'rs

• Decision Date: 22 April 1969
• Docket Number: No. 68--866,68--866
• Citation: 221 So.2d 797
• Parties: Carmen Hurtado DE MANDOZA, Appellant, v. BOARD OF COUNTY COMMISSIONERS d/b/a Metropolitan Dade County Transit Authority, Appellee.
• Court: Florida District Court of Appeals

Page 797

221 So.2d 797

Carmen Hurtado DE MANDOZA, Appellant, v. BOARD OF COUNTY COMMISSIONERS d/b/a Metropolitan Dade County Transit Authority, Appellee.

No. 68--866.

District Court of Appeal of Florida, Third District.

April 22, 1969.

McCullough & Engel, Miami, and David Jack Palgon, Miami Springs, for appellant.

Mitchell J. Lipcon, John E. Finney, and Sam Daniels, Miami, for appellee.

Before CHARLES CARROLL, C.J., and PEARSON and SWANN, JJ.

PEARSON, Judge.

Carmen Hurtado De Mendoza instituted a personal injury action against the Board of County Commissioners of Dade County. On July 16, 1968, a jury found for her and assessed her damages at $5,000. On July 22 the court entered judgment for $5,000 and costs in her favor. On July 24 defendant-appellee filed a pleading titled 'Motion Notwithstanding The Verdict' in which appellee moved the court to enter judgment in its favor notwithstanding the verdict 'on the ground that there is no competent evidence to support the verdict for the plaintiff.' On August 2, 1968, the court entered an order setting aside the verdict and entering judgment for the appellee on the ground 'that there was no competent evidence to support the verdict for the plaintiff.' This appeal is from that final order. We affirm.

Appellant's main point on this appeal is that because appellee's motion was labelled 'Motion Notwithstanding The Verdict', it was equivalent to the common-law motion of Non obstante veredicto; and therefore it could not be used to question the sufficiency of the evidence to support the verdict. See Okeechobee Co., for Use and Benefit of Homrick v. Norton, 149 Fla. 651, 6 So.2d 632 (1942); Tolliver v. Loftin, 155 Fla. 698, 21 So.2d 359 (1945).

Appellee had moved for a directed verdict at the conclusion of all of the evidence upon the ground that the plaintiff's evidence had not shown any negligence towards her. Thereafter the Motion Notwithstanding The Verdict was made within ten days of the rendition of the verdict. The title of appellee's motion should have been 'Motion For Judgment In Accordance With Motion For Directed Verdict' or something similar. See Rule 1.480, Florida Rules of Civil Procedure, 30 F.S.A. ¹ It will be observed from a reading of the rule cited that there is no provision for a motion for judgment Non obstante veredicto. Nor is there a provision for a motion 'notwithstanding verdict'. ² The question thus presented is whether by granting relief in accordance with the substance of appellee's motion rather than denying the appellee relief because the motion was improperly titled the trial court committed reversible error.

This court has held that '(a) pleading will be considered what it is in substance, even though mislabelled.' Sodikoff v. Allen Parker Company, Fla.App.1967, 202 So.2d 4. See also Hough v. Menses, Fla.1957, 95 So.2d 410, 412; Florida Fuel Oil v. Springs Villas, Fla.1957, 95 So.2d 581, 582; and the last sentence of Rule 1.110(g), Florida Rules of Civil Procedure, 30 F.S.A. 72. We therefore hold that the trial court did not commit reversible error. Courts should look to the substance of a motion and not the title alone. The fact that the mislabelling was not harmful error in this case is further substantiated by the fact that the motion was based on only one ground, a lack of competent evidence. Therefore the appellant was not prejudiced or misled by the title of the motion.

Appellant's remaining point urges that in view of the rule that a court should not substitute its opinion for that of the jury, the motion should not have been granted upon the facts of this case. The only negligence which appellant charged is that appellee's bus driver started out too quickly after she, a passenger, alighted from the rear door of appellee's bus. Since there was undisputed evidence that the...