Russo v. Clark
| Decision Date | 04 April 1962 |
| Docket Number | No. 31402,31402 |
| Parties | A. L. RUSSO, Petitioner, v. Nolan CLARK, Respondent. |
| Court | Florida Supreme Court |
Wm. H. Robbinson, of Maguire, Voorhis & Wells, Orlando, for petitioner.
Robert L. Wilson, Isham W. Adams and William W. Judge, Daytona Beach, for respondent.
The sole point for determination by this court is the harmony or disharmony between the decision of the District Court of Appeal, Second District, reversing an order of the trial judge granting the motion of The jury had awarded the plaintiff a verdict of about $19,000 in an action for damages alleged to have been suffered as a result of an automobile collision for which the defendant was responsible.
the defendant for a new trial and the decisions of this court in the cases of Cloud v. Fallis, Fla., 110 So.2d 669, and Bennett v. Jacksonville Expressway Authority, Fla., 131 So.2d 740.
The defendant presented his motion for new trial and the judge after hearing oral argument and considering briefs in support of the motion and in opposition to it granted the motion because the verdict was 'so grossly excessive as to shock the judicial conscience and indicate that the jury was influenced by passion, prejudice, sympathy or other matters outside the evidence * * *.'
The case then went to the District Court of Appeal where the appellant was confronted with the burden of clearly showing that the trial judge had abused the broad discretion accorded him in such instances, Cloud v. Fallis, supra, and with the allied rule that it requires a stronger showing to upset an order granting a motion for new trial than an order denying one. Poindexter v. Seaboard Air Line R. Co., Fla., 56 So.2d 905; Archibald v. Wittmer, Fla.App.1960, 120 So.2d 236.
At the outset District Court of Appeal observed that there were many opinions holding that a duty was put upon trial courts setting aside verdicts so excessive as to shock the judicial conscience. Then the court shifted to a negative approach by stating that no case had been discovered, however, precluding examination of the record by an appellate court 'to determine whether a finding * * * of excessiveness * * * shocking to the judicial conscience amounted to an abuse of discretion constituting reversible error.'
The matter seemed to devolve into the condition of the trial judge's conscience and we have already referred, in Bennett v. Jacksonville Expressway Authority, supra, to the difficulty of determining from cold type the condition of a trial judge's conscience. He has the advantage of the same information conveyed by the record and in addition first-hand intelligence coming to him from 'his contact with the trial and his observation of the behavior of those upon whose testimony the finding of fact must be based [and he] is better positioned than any other one person fully to comprehend the processes by which the ultimate decision of the triers of fact, the jurors, is reached.' Cloud v. Fallis, supra.
When the reviewers of the record attempt to pit their appraisal of the trial judge's conscience against their own, they are at a distinct disadvantage and the task is one which they should warily undertake. It is true that such a rule would place in the trial judge the power, of overturning a verdict, which would be well-nigh unassailable when the reason given is the shock to his conscience. But this should be so for the best evidence of the condition of the judge's conscience is the certificate of the judge himself, and if a member of the circuit judiciary bound as he is by his oath of office solemnly states that his conscience is shocked by a verdict, his certificate should prevail over a conclusion reached from the record. It is conceivable that an explanation of his state of conscience might lead to an investigation revealing plain miscalculation or something of the sort by which he had been innocently misled, however, there is nothing here but the bare statement and we think in the face of it, there was no appearance, much less a clear appearance, that the judge was wrong.
Following the comment about the absence of authorities precluding review of the record to gauge the merits of the judge's certificate of shock because of excessiveness of the verdict, the court resorted to the decision in F. P. Sadowski Corporation v. Mow, Fla., 131 So.2d 3, and quoted rather generously from the dissenting opinion, but it is patent from the report of that decision Using this opinion as a springboard, the District Court of Appeal came to the positive conclusion that the court could 'review the record * * * to determine whether the lower court's grant of a new trial was reversible error.' Then the court passed to its own opinion in Price v. Jordan, Fla.App.1959, 115 So.2d 444, where the circuit judge had ordered a remittitur because of his 'difficulty in reconciling the justice of the cause with the verdict of the jury * * *.' It was stated in that opinion that the case was not one in which the trial court 'granted a new trial unconditionally on the ground that the verdict was contrary to the manifest weight of the evidence.' From this very language, and further from the lack of any reference to the effect of the verdict upon the trial judge's conscience, it is obvious that the situation confronting the court was not the same as the one with which we are dealing.
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