Roth v. Calvert Fire Ins. Co., 59-126

• Decision Date: 10 March 1960
• Docket Number: No. 59-126,59-126
• Citation: 119 So.2d 49
• Parties: Margaret ROTH and Peter S. Roth, her husband, Appellants, v. CALVERT FIRE INSURANCE COMPANY, a foreign corporation, Appellee.
• Court: Florida District Court of Appeals

Page 49

119 So.2d 49

Margaret ROTH and Peter S. Roth, her husband, Appellants, v. CALVERT FIRE INSURANCE COMPANY, a foreign corporation, Appellee.

No. 59-126.

District Court of Appeal of Florida, Third District.

March 10, 1960.

Rehearing Denied April 13, 1960.

Alfred D. Bieley, Miami, for appellants.

Engelhardt & Harkness, Miami, for appellee.

HORTON, Chief Judge.

Plaintiffs appeal from an order granting a new trial. The defendant has filed a cross assignment of error directed to the alleged error of the trial court in entering a summary judgment on liability which was not indicated as a ground in the order granting the new trial.

The appellants sought to recover for property damage to their automobile under a collision contract of insurance issued by the appellee. The trial court granted a summary judgment on liability and the suit went to trial upon the issue of damages. At the close of the evidence, the court instructed the jury in part as follows:

'You are further instructed that the damages that the plaintiffs in this case are entitled to is what you find to be the difference between the value of the motor vehicle immediately prior to the accident in which said motor vehicle was damaged, and the motor vehicle after the accident in its damaged condition * * *.'

Following which the jury returned a verdict as follows:

'We the Jury find for the Plaintiff and assess damages at $2,700.00 with the provision that title of said car will go to Calvert Fire Insurance Co.'

Appellee's motion for new trial was granted, setting aside and vacating the verdict.

Generally, an appeal will lie only from a final judgment or decree except as specified by rule or statute. Hensley v. Palmer, Fla.1952, 59 So.2d 851; Martin v. Meyer, Fla.1953, 68 So.2d 597; Brannon v. Johnston, Fla.1955, 83 So.2d 779. Section 59.04, Fla.Stat., F.S.A., allows appeal from an order granting a motion for new trial. The scope of an appeal from an order granting a new trial is set forth in § 59.07(4), Fla.Stat., F.S.A., which states:

'[N]o other grounds than those specified by the trial judge, as a basis for the order granting a new trial, shall be considered as arguable upon said appeal.'

The cross assignment filed by appellee attempts to review a ground not specified in the order granting a new trial. Under the statutory limitation, the cross assignment was improper and will not be considered on this appeal. See Martin v. Meyer, supra; Leonetti v. Boone, Fla.1954, 74 So.2d 551; Lockhart v. Friendly Finance Co., Fla.App.1959, 110 So.2d 478.

The appellants have assigned as error the granting of appellee's motion for new trial. Trial courts are allowed a very broad and liberal discretion in the matter of granting a new trial and the decision of the trial judge in doing so will seldom be reversed by an appellate court unless an abuse of discretion is shown resulting in an injustice or a violation of the law. See Pyms v. Meranda, Fla.1957, 98 So.2d 341, 343; Cloud v. Fallis, Fla.App.1958, 107 So.2d 264, 269, certiorari discharged, Fla.1959, 110 So.2d 669; 23 Fla.Jur., New Trial, § 87.

Appellants have cited authority for the proposition that mere surplusage does not affect the validity of the verdict; however, we feel this statement is not applicable to the case at bar.

The trial court indicated the following, among others, as the grounds for setting aside and vacating the verdict: (1) the verdict is contrary to and not responsive to the charges of the court given to the jury; and (2) and verdict is inconsistent with the charges of the court. From a consideration of the instructions given by the court, he evidence offered on this theory and the verdict rendered, it is obvious that the jury did not determine the value of the automobile after the accident as instructed, but apparently awarded the damaged automobile to the defendant, granting to the plaintiffs the value of the automobile before the accident.

When it is shown that the jury did not consider all the elements of damage involved, neglected to consider issues submitted or failed to discharge its duty as given them by the court's charge, a motion for new trial should be granted. See Atlantic Coast Line R. Co. v. McIlvaine, 121 Fla. 78, 163 So. 496; Radiant Oil Co. v. Herring, 146 Fla. 154, 200 So. 376. See also Ocala Iron Works v. Crosby, 61 Fla. 369, 54 So. 815.

We conclude the trial judge was eminently correct and the order granting a new trial is affirmed.

Affirmed.

CARROLL, CHAS., J., concurs.

KEHOE, JOHN J., Associate Judge, dissents.

KEHOE, JOHN, J., Associate Judge (dissenting).

This is an appeal taken by the plaintiffs below from an order of the trial court granting the defendant's motion for a new trial after judgment in favor of the plaintiffs had been rendered by a jury duly impaneled to decide the issues raised by the pleadings, upon the evidence presented to the jury and upon the instructions of law given to the jury by the court.

The order granting the motion for new trial assigns as reasons for the granting thereof, the following:

(a) The verdict is contrary to the law.

(b) The verdict is contrary to and not responsive to the charges of the court given to the jury.

(c) The verdict is inconsistent with the charges of the court.

(d) The verdict is illegal.

(e) The verdict is conditional and impossible of performance.

In the order granting the new trial, it is not specified to which charge of the court the verdict was not responsive, nor is it recited which charge of the court given to the jury is inconsistent with the verdict of the jury.

The verdict as rendered by the jury is inconsistent with the charge given to the jury by the court, in that, the jury was instructed that they could find and award to the plaintiff attorney's fee and that said attorney's fee would be in the sum of $100 plus 10% of the amount of damages awarded to the plaintiff. On page 102 of the Transcript, this question was discussed by the court with the attorneys and with the jury, and it was determined that the award included in the verdict included attorney's fee. This verdict in its form was accepted by the court, with this comment, 'You have to go back to your math book, I am sure'. There was no objection as to the form of the verdict, and as indicated by the court, by a mathematical calculation the amount of the jury award for attorney's fee could reasonably be calculated. To this extent, the verdict was inconsistent with the instructions given the jury by the court. However, the verdict in its form was accepted by the court and not objected to by either the plaintiffs' or the defendant's attorney.

Briefly stated, the facts in this case are that the plaintiffs acquired ownership of purchased from the defendant an insurance purchased from the defendant an insurance policy to indemnity them against loss that may be occasioned by accident or collision, and the defendant, by its contract of policy of insurance, agreed to insure the owner against such loss to the actual cash value of the automobile.

The evidence established that this collision occurred in Dade County, Florida, on December 10, 1952. The plaintiffs alleged that as a result of the collision the automobile was totally damaged. From the record made before the trial court, it appears that all parties concede that the value of this particular automobile on the date of December 10, 1952, was $2,500. The plaintiff offered as a witness, one Burton Ginsberg, who was affiliated with the Nash Motor Company of Miami, who testified (Tr. 28) that he estimated the value of automobile in question to be in the vicinity of twenty-eight to twenty-nine hundred dollars. He repeated this estimate of value on cross-examination (Tr. 36). The evidence disclosed that there was no connection or relationship, business or otherwise, between this witness and the plaintiff, or either of...