Merwin v. Kellems
| Decision Date | 16 March 1955 |
| Parties | John C. MERWIN, Jr., and Blanchard Machinery, Inc., a Florida Corporation, Appellants v. Charles Leo KELLEMS, Appellee. |
| Court | Florida Supreme Court |
Knight, Smith & Underwood, Herschel E. Smith and Wm. H. Hoeveler, Miami, for appellants.
Nichols, Gaither, Green, Frates & Beckham and Sam Daniels, Miami, for appellee.
Appellee, Kellems, was injured in an intersectional motor vehicle collision when his automobile was struck by an automobile owned and operated by the appellant Merwin. Kellems filed suit against Merwin and the other defendant, Blanchard Machinery, Inc., charging Merwin with negligence and also that at the time of the accident he was a servant of Blanchard Machinery, Inc. and was acting in the scope of his employment by and in the course of his duties for Blanchard, or in the alternative that Merwin and Blanchard were engaged in a joint venture. Both defendants answered denying the allegation of neglignce and Blanchard further denied that at the time and place of the accident Merwin was its servant and also denied that Merwin was acting in the scope of his employment by Blanchard at the time of the accident, or that Merwin and Blanchard at the time of the accident were engaged in a joint venture. On these issues the case went to trial before a jury and resulted in a verdict for plaintiff, Kellems, in the sum of $165,000, pursuant to which judgment was entered. The trial Judge who heard the evidence denied motions for the entry of judgment, or in the alternative for a new trial, and each defendant has filed a separate appeal.
It is contended that Kellems was guilty of contributory negligence, that the verdict is excessive, and further that the relationship of master and servant did not exist and that Merwin at the time of the accident, even if a servant, was not then acting in the scope of his employment. To discuss six hundred pages of conflicting testimony would add nothing to the value of the opinion, merely length. Neither is it necessary to cite authorities or repeat the well established rule that a conflict in the evidence is for the jury. The case was properly submitted to the jury and we find no reason to disturb the verdict which finds ample support in the evidence.
It is contended also that the verdict is excessive. After being hit by Merwin's car, Kellems' car turned over and Kellems thrown out and found unconscious on the ground with his skull laid open. According to the Doctors Kellems had suffered a permanent brain injury and had 'a permanent disability of 50% considering the body as a whole'. At the time of the trial Kellems was 50 years of age and had a life expectancy of 21.37 years....
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