Southern Utilities Co. v. Davis

• Decision Date: 20 July 1925
• Citation: 105 So. 315,90 Fla. 168
• Parties: SOUTHERN UTILITIES CO. v. DAVIS.
• Court: Florida Supreme Court

105 So. 315

90 Fla. 168

SOUTHERN UTILITIES CO. v. DAVIS.

Florida Supreme Court

July 20, 1925

Error to Circuit Court, Broward County; E. C. Davis, Judge.

Action by Mamie Davis, by B. C. Moore, her next friend, against the Southern Utilities Company. Judgment for plaintiff, and defendant brings error.

Affirmed on condition of remittitur.

Syllabus by the Court

SYLLABUS

Finding of damages not set aside as excessive, unless result of prejudice or palpable error. The question of the amount of damages recoverable in an action for death by wrongful act is one peculiarly within the province of the jury, and their finding will not be set aside as excessive unless it is the result of passion or prejudice, or unless the court can clearly see that the jury have committed some palpable error or have totally mistaken the rules of law by which the damages in the particular case were to be measured.

Supreme Court will require remittitur from judgment for wrongful death on appearance from record that amount awarded is excessive in light of earning capacity, habits, character conduct, and experience of deceased. This court will not withhold its power to require a remittitur entered in the case of a judgment recovered for death by wrongful act, where it fully appears from the record that the amount awarded is excessive in the light of the shown earning capacity, habits character, conduct, and experience of the deceased.

$14,000 damages held excessive. Judgment of $14,000 for death of husband by wrongful act held excessive by $4,000.

COUNSEL

Maxwell Baxter and C. L. Chancey both of Ft Lauderdale, and Miller Walton, of Palatka, for plaintiff in error.

Carson, Murrell & Farrington, of Miami, for defendant in error.

OPINION

PER CURIAM.

Mamie Davis recovered a judgment in the sum of $14,000 against Southern Utilities Company for the negligent death of her husband, J. C. Davis. A former judgment in the sum of $18,000 was reversed by this court for insufficiency of the evidence to support it. Southern Utilities Co. v. Davis, 83 Fla. 366, 92 So. 683.

Reversal is now sought on the ground of contributory negligence, excessiveness of the verdict insufficiency of the evidence to support it, and for other grounds immaterial to mention here.

We have considered all the assignments carefully, and, while there is substantial evidence tending to prove contributory negligence, the jury has twice resolved this theory against the plaintiff in error, and it is not made to appear that their finding in this was the result of passion, prejudice, partiality, or corruption.

The rule is well supported by the authorities that the question of the amount of damages recoverable in an action for death by wrongful act is one peculiarly within the province of the jury, and their finding will not be set aside as excessive unless it is the result of passion or prejudice, or unless the court can clearly see that the jury have committed some palpable error or have totally mistaken the rules of law by which the damages in the particular case were to be measured. Ross v. Texas & P. R. Co. (C. C.) 44 F. 44; Harkins v. Pullman Palace Car Co. (C. C.) 52 F. 724; Southern Pacific Co. v. Wilson, 10 Ariz. 162, 85 P 401; Bowen v. Sierra Lumber Co., 3 Cal. App. 312, 84 P. 1010; Bradley v. Sattler, 156 Ill. 603, 41 N.E. 171; Cox's Adm'r v. Louisville & N. R. Co., 137 Ky. 388, 125 S.W. 1056; Gamache v. Johnson Tin Foil, etc., Co., 116 Mo.App. 596, 92...