Puleo v. Shaw

• Decision Date: 31 January 1963
• Docket Number: No. D-228,D-228
• Citation: 149 So.2d 880
• Parties: John Anthony PULEO, a minor, by his next friend and father, John Joseph Puleo, and John Joseph Puleo, Appellants, v. Elizabeth A. SHAW and John C. Shaw, Appellees.
• Court: Florida District Court of Appeals

Page 880

149 So.2d 880

John Anthony PULEO, a minor, by his next friend and father, John Joseph Puleo, and John Joseph Puleo, Appellants, v. Elizabeth A. SHAW and John C. Shaw, Appellees.

No. D-228.

District Court of Appeal of Florida, First District.

Jan. 31, 1963.

Rehearing Denied March 6, 1963.

Maurice Wagner, Holly Hill, and Richard D. Bertone, Daytona Beach, for appellants.

John L. Graham (of Hull, Landis, Graham & French), DeLand, for appellees.

WIGGINTON, Judge.

Plaintiffs have appealed a final judgment entered upon a jury verdict in an action for damages arising out of a rear end automobile collision which occurred at a street intersection in Daytona Beach. It is contended that the trial court erred in denying plaintiffs' motion for a new trial based upon the principal ground that the verdict is contrary to the manifest weight of the evidence and the justive of the cause.

Plaintiff father was operating his automobile on the streets of Daytona Beach and the plaintiff minor son was riding with him as a passenger in the front seat. After coming to a stop at a street intersection in response to a traffic control sign, plaintiffs' vehicle was struck from the rear by a vehicle owned by defendant John C. Shaw and operated by his wife, defendant Elizabeth A. Shaw. The force of the impact propelled plaintiffs' vehicle forward two car lengths into the intersection.

By their complaint plaintiff minor sought damages for the personal injuries sustained by him as a result of the collision consisting of pain and suffering, diminution of earning capacity, loss of social and recreational activity, interference with schooling, injury to his general health and for medical expenses which would necessarily be incurred after reaching the age of twenty-one years. The father sought damages for the medical expenses necessarily incurred as an incident to his son's injuries, and for loss of his son's services until the latter reaches his majority. To the complaint defendants filed a defense of general denial as to all the material allegations of the complaint.

At the trial plaintiffs introduced evidence which establishes without serious conflict that the collision resulted from the negligent operation of defendants' vehicle by the defendant Elizabeth A. Shaw. Since defendants make no point on this appeal as to the correctness of the jury's verdict finding in favor of plaintiffs on the issue of liability, we pretermit any further discussion of this issue.

With respect to the issue of damages the evidence establishes without substantial conflict that prior to the collision in question the minor plaintiff, a boy thirteen years of age, enjoyed good health and was free from any known physical defects; that he participated in such normal activities as football, basketball and similar sports; and, that he had suffered no previous injury to his head, back or neck. The evidence further shows that prior to the collision he was successful in passing all of his school work, receiving a grade of 'A' in the course of physical education. He also assisted his parents from time to time in the operation of their small grocery store.

The testimony reveals without contradiction that the force of the collision caused the minor plaintiff's head to snap backward and then lash forward to the extent that it almost struck the dashboard of the automobile. The boy immediately experienced severe pain in the head, which pain persisted over a period of several days. When customary home treatments failed to alleviate the recurring headaches the boy was sent to his family physician, who, after a cursory examination, recommended that he be examined by an orthopedic surgeon. The services of one Dr. Fred Albee, a local orthopedic surgeon whose qualifications are not in question, were sought for the purpose of making an examination and diagnosis of the boy's condition. Dr. Albee subjected the boy to a complete physical examination. After being informed of the boy's history, the nature of the collision in which he was involved, and the pain which he had subsequently experienced in his head, back and neck, the doctor made certain objective findings which in his opinion validated the subjective symptoms related to him. The doctor testified that he found muscle spasm and induration in the neck and shoulder muscles. His examination revealed a swelling in the left lumbar paravertebral muscles and expressed the opinion that the blinking and watering of the boy's eyes was a reflex nervous condition resulting from injury to the cervical region. The doctor diagnosed the boy's condition as a sprain of the cervical spine with cervical syndrome, and prescribed physical therapy in order to effect a cure of the condition. Several weeks later the boy complained of a tenderness in the left shoulder girdle and an examination by Dr....