Radiant Oil Co. v. Herring
| Decision Date | 14 February 1941 |
| Citation | 200 So. 376,146 Fla. 154 |
| Parties | RADIANT OIL CO. v. HERRING (two cases). |
| Court | Florida Supreme Court |
En Banc.
Error to Circuit Court, Palm Beach County; C. E. Chillingworth Judge.
Separate actions by Catherine Jean Herring, a minor, by her father and next friend, Gene Herring, for personal injuries, and by Gene Herring for loss of services against Radiant Oil Company. Order awarding Catherine Jean Herring a new trial for inadequacy of damages and judgment for Gene Herring for $1,767.05, and defendant brings separate writs of error which were consolidated and argued together.
Judgment and order reversed and new trials awarded in both cases as to all issues.
Earnest, Lewis & Smith, of West Palm Beach, for plaintiff in error.
Blackwell & Donnell, of West Palm Beach, for defendant in error.
Catherine Jean Herring, a child six years old was injured by a truck of Radiant Oil Company while playing in an alley in West Palm Beach near where the truck was servicing a fueling plant for a backery. She brought a common law action for damages and recovered a verdict for one thousand dollars. Her father Gene Herring, brought a common law action against the same defendant to recover for loss of services of his child and for medical expenses and recovered a verdict of $1,767.05, the exact amount claimed and shown to have been incurred for medical expenses. No loss of services was proven.
The issues in each case were tried and verdicts were rendered by the same jury. A joint bill of exceptions was settled, writs of error were taken by the defendant in both cases, and they were consolidated and argued together in this Court. In the case of Gene Herring, the writ of error is to a final judgment on the verdict while in the case of Catherine Jean Herring, the writ of error was to an order granting a new trial because of inadequacy of the verdict, the new trial being limited to the question of damages only.
The same grounds are urged for reversal in both cases. It is first contended that an unschooled child six years of age is incapable of appreciating the significance of an oath and being so, it was error to permit her to testify in the case.
It is quite true that under the common law a person under fourteen years of age was not considered a competent witness in any controverted matter but in Florida and we think generally that rule has been abandoned and that not an arbitrary age but the degree of intelligence one exemplifies as to the sanctity of an oath and as to affairs generally is the test by which he will be permitted to testify. Such a test is a matter for determination by the trial court and there is no showing that his discretion was abused.
Should the trial court have granted the motion for new trial for inadequacy of damages predicated on no specific ground but on general allegations?
It has been held that under the old common law rule, a motion for new trial for inadequacy of damages should not be granted but the general rule now seems to be that a verdict for grossly inadequate damages stands on the same ground as a verdict for excessive or extravagant damages and that a new trial may as readily be granted in one case as the other. Such verdicts will not be set aside for the mere reason that they are less than the Court thinks they should be. It must be shown that the verdict...
To continue reading
Request your trial
-
Cedars of Lebanon Hosp. Corp. v. Silva
...another issue or is not separable from another issue. 7 See, e.g., Remsberg v. Mosley, 58 So.2d 432 (Fla.1952); Radiant Oil Co. v. Herring, 146 Fla. 154, 200 So. 376 (1941). Compare Brinson v. Howard, 71 So.2d 172 (Fla.1954) (explaining Remsberg, supra ); Eggers v. Narron, 254 So.2d 382 (Fl......
-
Griffin v. State
...fourteen was considered competent to testify in any controverted matter. Lloyd v. State, 524 So.2d 396 (Fla.1988); Radiant Oil Co. v. Herring, 146 Fla. 154, 200 So. 376 (1941). However, under current Florida law, the primary test "of testimonial competence of an infant witness is his or her......
-
Castlewood Intern. Corp. v. LaFleur
...such as scope of cross-examination, Dabney v. Yapa, 187 So.2d 381 (Fla.App.3d 1966); and, competency of witnesses, Radiant Oil Co. v. Herring, 146 Fla.154, 200 So. 376 (1941); motion for mistrial, Wirt v. Fraser, 158 Fla. 777, 30 So.2d 174 (1947); motion for new trial, Cloud v. Fallis, 110 ......
-
Bennett v. Jacksonville Expressway Authority, 30990
...and on subsequent appeal, stands in exactly the same position as such a challenge of a verdict for excessiveness. Radiant Oil Co. v. Herring, 146 Fla. 154, 200 So. 376; Allen v. Powell, 152 Fla. 443, 12 So.2d 378; 23 Fla.Jur., New Trial, § 61. A motion for new trial for excessiveness of a v......