Nelson v. McMillan

• Decision Date: 17 November 1942
• Parties: NELSON v. McFILLAN er al.
• Court: Florida Supreme Court

10 So.2d 565

151 Fla. 847

NELSON v. McFILLAN er al.

Florida Supreme Court

November 17, 1942

Rehearing Denied Dec. 14, 1942.

Appeal from Circuit Court, Orange County; Frank A Smith, judge.

Lee Guest of Jacksonville, for appellant.

G. P Garrett, of Orlando, for appellees.

WHITFIELD, Justice.

This appeal is from a judgment awarding damages for personal injuries to a guest of defendant sustained in an automobile collision at a street intersection.

Section 1, Chapter 18033, Acts of 1937, provides: 'That no person transported by the owner or operator of a motor vehicle as his guest or passenger, without payment for such transportation, shall have a cause of action for damages against such owner or operator for injury, death or loss, in case of accident, unless such accident shall have been caused by the gross negligence or wilful and wanton misconduct of the owner or operator of such motor vehicle and unless such gross negligence or wilful and wanton misconduct was the proximate cause of the injury, death or loss for which the action is brought, provided that the question or issue of negligence, gross negligence, and wilful or wanton misconduct, and the question of proximate cause, and the issue or question of assumed risk, shall in all such cases be solely for the jury. Provided that nothing in this Act shall apply to school children or other students being transported to or from schools or places of learning in this State.' Sec. 1296(a), 1940 Supp. to C.G.L., sec. 320.59, Florida Statutes 1941.

The injury here sought to be remedied occurred March 16, 1940, after the above-quoted statute became effective. See Pickett v. Matthews, 238 Ala. 542, 192 So. 261; O'Reilly v. Sattler, 141 Fla. 770, 193 So. 817; Winthrop v. Carinhas, 142 Fla. 588, 195 So. 399; Jackson v. Edwards, 144 Fla. 187, 197 So. 833; Koger v. Hollahan, 144 Fla. 779, 198 So. 685, 131 A.L.R. 886; Hollander v. Davis, 5 Cir., 120 F.2d 131.

The so-called 'guest' statutes are designed to relieve owners and operators of automobiles of the consequences of ordinary negligence causing injury to their guests in automobile traveling on the public highways. When operating prospectively such statutes are generally sustained as a reasonable exercise of the sovereign police power of the state to conserve human life and safety, when a guest is not deprived of all remedy for a justiciable injury. See 5 Am.Jur. p. 633 et seq., and authorities there cited.

The statute provides that 'the question or issue of negligence, gross negligence, and wilful or wanton misconduct, and the question of proximate cause, and the issue or question of assumed risk, shall in all such cases be solely for the jury.'

The quoted provision should be given its full scope and force as a legislative enactment; but the constitution forbids the legislative department of the government to 'exercise any powers appertaining to' the judicial department, and vice versa, Article II; and the statutory provision should be so interpreted as to be in accord with, and not conflict with, the constitution. Jury verdicts are not final as against authorized judicial review.

A trial jury, duly constituted, is an adjunct of the judicial department. Within its authority to render a verdict in a trial in court upon evidence adduced under the law as given by the court, the function of the jury is exclusive in determining facts within the issues being tried; but under the law the validity of the verdict rendered is to be determined by the court and is subject to authorized judicial review, to the end that 'right and justice shall be administered * * * by due course of law.' Sec. 4, Declaration of Rights, Florida constitution. On appeal from a final judgment the verdict of the jury and the judgment of the trial court thereon will be given due consideration and weight in determining the correctness of the judgment, yet this court exercises its judicial power of appellate review under the constitution and renders its appropriate judgment as required by law. Sec. 4637 (2918), C.G.L., sec. 59.34, Florida Statutes 1941.

The trial judge granted a new trial predicated upon his opinion as to the legal sufficiency of the evidence to sustain the verdict. On writ of error to the order granting a new trial, this court affirmed the order upon the theory that there was no abuse of judicial discretion in granting a new trial, though the evidence tended to sustain the verdict. This was due course of law, leaving the issue to be tried anew, the verdict thereon being subject to review by the trial court on a motion for new trial. The court rendered judgment on the verdict as returned, stating that he did not regard the evidence as sufficient, but construed the former opinion of this court in the case as requiring an approval of the verdict. This court now acts upon the judgment rendered and exercises its constitutional judicial power in determining whether the evidence as contained in the present record is in law sufficient to sustain the verdict and judgment, giving due consideration to the verdict of the jury and the opinion of the trial court thereon.

'Gross negligence' is alleged and the facts stated as constituting such gross negligence are: 'at an intersection of a street called Grand Avenue and a busy arterial highway called the Orange Blossom Trail, the said Victor D. Nelson drove his automobile into said busy arterial highway without stopping when commended to do so by an appropriate stop sign and failed to look for oncoming traffic along said highway and proceeded to drive his automobile across said highway and thereby caused his automobile to collide with another car, and thereby plaintiff, who was then and there riding in defendant's said automobile as a guest, was injured * * *.'

The evidence shows that the defendant was the driver of the automobile, with his wife on his right and plaintiff on her right, all on the front seat, while plaintiff's son was on the rear seat. Just before defendant's car going west on a...