National Car Rental System, Inc. v. Bostic

• Citation: 423 So.2d 915
• Decision Date: 26 October 1982
• Docket Number: No. 81-2130,81-2130
• Parties: NATIONAL CAR RENTAL SYSTEM, INC., and Travelers Indemnity Co., Appellants, v. Marvin BOSTIC, Appellee.
• Court: Court of Appeal of Florida (US)

Page 915

423 So.2d 915

NATIONAL CAR RENTAL SYSTEM, INC., and Travelers Indemnity Co., Appellants, v. Marvin BOSTIC, Appellee.

No. 81-2130.

District Court of Appeal of Florida Third District.

Oct. 26, 1982.

Rehearing Denied Jan. 12, 1983.

Adams, Ward, Hunter, Angones & Adams and John McClure, Miami, for appellants.

Kaplan, Sicking, Hessen, Sugarman, Rosenthal & DeCastro; Joel V. Lumer, Miami, for appellee.

Before HENDRY and DANIEL S. PEARSON, JJ., and MELVIN, WOODROW M. (Ret.), Associate Judge.

MELVIN, WOODROW M. (Ret.), Associate Judge.

The case sub judice arose out of an automobile accident wherein an automobile [owned by the defendant, National Car Rental System, Inc., and insured by the defendant, Travelers Indemnity Company] while being driven by one Laverne Jackson, crossed the centerline of the road and crashed head-on with Marvin Bostic's vehicle which was being driven in the opposite direction. Marvin Bostic suffered fractured ribs, a contused lung and a cervical and low back sprain as a result of the accident. His mother, a passenger in Bostic's vehicle, died at the scene as a result of her injuries. When the impact occurred, Bostic lost consciousness for 3 or 4 minutes. Upon awakening he heard his mother moaning and saw her bleeding face. She asked Bostic to render her assistance which Bostic was unable to do because of the nature of his own injuries. Despite her pleas he could do nothing to comfort her, prior to her death. Bostic's physical injuries healed leaving a minimal disability of about 5%. However, he suffered, and still suffers, a severe emotional problem stemming from his inability to do anything to help or save his mother. As a result thereof, Bostic filed suit against Jackson, National Car Rental System, Inc., and Travelers Indemnity Company seeking damages for both his physical and psychological injuries. Prior to trial the defendants moved to exclude from the jury, evidence relating to Bostic's emotional disturbance caused by being present and witnessing his mother's death at the scene and to prevent pictures of the deceased from being introduced into evidence. The motion was denied. National and Travelers also moved to amend their answer to file an additional affirmative defense of non-liability alleging that subsequent to filing their answer they found out that one John Spaulding [the person who originally rented the car] had obtained the car by fraudulent means [to wit: an altered credit card] and the car was in fact a stolen vehicle which was being driven without valid consent. That motion was also denied. At the beginning of the trial National and Travelers unsuccessfully renewed both of these motions. The cause proceeded to trial. At the conclusion of the second day the trial judge in excusing the jury stated:

"This is a very serious case. I think tomorrow we can wrap it up as early as possible."

The following morning National moved for a mistrial on the basis of the judge's statement and on the basis that the evidence relating to the emotional sufferings of Bostic and the photographs of Bostic's mother were prejudicial to its cause and should not have been admitted. The motion was denied. At the conclusion of all the evidence, the trial court granted Bostic's motion for directed verdict as to negligence; proof of consent to operate National's car; and the issue of compliance with the minimal requirements of the Florida No-Fault Statute. Closing argument followed at which counsel for Bostic made the following comments:

Now, that is just physically. They are all trying to sell you a bill of goods. While the executives at Travelers, none of whom you see here, sit in their ivory towers, puffing on their cigars in their multimillion dollar buildings, they say, "Just let them try it."

MR. McCLURE: Objection. It is inflammatory.

THE COURT: Overruled.

MR. HESSEN: "Bring them all the way. If they give it to him, we'll pay it."

I submit to you they should pay it. They should pay every penny of it. They should. God knows, they should.

Compare the horror. He gets up here, their hired gun, their man.

I would just say to Mr. McClure--and I say, "If the shoe is on the other foot, would you wear it?"

Thereupon the plaintiff rested, the jury was charged and a verdict was returned in Bostic's favor in the amount of $180,000.00. This appeal is taken from the judgment entered pursuant to that verdict.

The appellants, National Car Rental System, Inc. and Travelers Indemnity Company have raised four points on appeal. First, they contend it was error to allow the plaintiff to present testimony of his emotional pain and suffering caused by his being present when his mother was killed in the accident when said evidence was inadmissible under the impact rule enunciated in Selfe v. Smith, 397 So.2d 348 (Fla. 1st DCA 1981); and Stewart v. Gilliam, 271 So.2d 466 (Fla. 4th DCA 1972). Rev. 291 So.2d 593 (Fla.1974). We have no quarrel with the aforementioned impact rule; but rather find that the instant case falls clearly within that rule. The evidence showed that Bostic's emotional problem was caused by his inability to render aid and comfort to his mother because of the injuries and impact suffered by Bostic which had rendered him physically unable to come to her aid. Therefore, we find no error in permitting into evidence testimony of Bostic's mental pain and suffering caused by his being present when his mother was killed. See Gellert v. Eastern Airlines, Inc., 370 So.2d 802 (Fla. 3d DCA 1979); Gilliam v. Stewart, 291 So.2d 593.

Secondly the appellants contend the trial court erred in refusing to allow them to amend their affirmative defenses prior to trial and to assert at trial the defense of lack of consent to drive the car. We find this point to be without merit. See Tillman Chevrolet Company v. Moore, 175 So.2d 794 (Fla. 1st DCA 1965); Susco Car Rental System of Florida v. Leonard, 112 So.2d 832 (Fla.1959).

The appellants in their third point challenge the propriety of directing a verdict in favor of Bostic on the issues of liability, comparative negligence and no-fault threshold. Where the evidence is not in conflict and there is no evidence adduced that could in law support a verdict for the non-moving party the trial court can and should direct a verdict in favor of the movant. Whetzel v. Metropolitan Life Insurance Company, 266 So.2d 89 (Fla. 4th DCA 1972); Garris v. Robeison, 146 So.2d 388 (Fla. 2d DCA 1962). A review of the properly admitted and unrebutted testimony resolves, beyond any question of a doubt, the issues of liability and no-fault threshold in favor of Bostic. Therefore, the trial court was correct in entering the directed verdict as to these issues. The issue of comparative negligence was also properly determined in Bostic's favor. See Quinn v. Millard, 358 So.2d 1378 (Fla. 3d DCA 1978).

Finally, the appellants allege prejudicial error based upon the comment of the trial judge to the jury pertaining to the importance of the case and the comments of Bostic's counsel made at the conclusion of his closing argument. While we find no merit in the allegation as to the judge's comment, we do find that the comments of couns...