Talcott v. Holl, 67--765

• Decision Date: 17 June 1969
• Docket Number: No. 67--765,67--765
• Parties: Leroy E. TALCOTT, Jr., and Donald Andrus, Appellants, v. Ellen Morgan HOLL, an incompetent, by and through her guardian Central Bank& Trust Co., Appellee.
• Court: Florida District Court of Appeals

Page 420

224 So.2d 420

Leroy E. TALCOTT, Jr., and Donald Andrus, Appellants, v. Ellen Morgan HOLL, an incompetent, by and through her guardian Central Bank& Trust Co., Appellee.

No. 67--765.

District Court of Appeal of Florida, Third District.

June 17, 1969.

Rehearing Denied July 25, 1969.

Carey, Dwyer, Austin, Cole & Selwood, and Edward A. Perse, Miami, for appellants.

Podhurst & Orseck, Colson & Hicks, Spence, Payne & Masington, Miami, for appellee.

Before CHARLES CARROLL, C.J., and PEARSON and SWANN, JJ.

CHARLES CARROLL, Chief Judge.

This is an appeal by two of the defendants (doctors) against whom a judgment was entered, based on a jury verdict, in an action for damages for personal injuries alleged to have been caused by negligence of the defendants in post operative treatment of the plaintiff, who sued through a guardian.

The basic facts are disclosed in an opinion of this court which affirmed a summary judgment for the defendants (171 So.2d 412), and in the opinion of the Supreme Court which, on certiorari, quashed our affirmance of the summary judgment and remanded the cause for further proceedings (191 So.2d 40).

Thereafter, on trial of the cause before a jury, a verdict was rendered in favor of one of the defendants, Glenn Curtis Austin, and a verdict was rendered in favor of the plaintiff against the defendants Leroy E. Talcott, Jr., Donald Andrus and Victoria Hospital, Inc., in the amount of $1,500,000. This appeal by Talcott and Andrus seeks reversal of the judgment entered against them on the latter verdict.

After verdict, the defendants who have appealed filed a motion in the trial court under Rule 1.480(b) RCP, 30 F.S.A. to set aside the verdict and judgment and for a directed verdict to be entered in their favor, and joined therewith a motion for new trial setting forth fifteen grounds, including a ground contending the verdict was excessive. The defendant Victoria Hospital, Inc., (which had not joined in this appeal) filed similar motions, including grounds claiming excessiveness of the verdict and moving (in the alternative) for reduction of the amount of the verdict by remittitur. Those motions were denied by the trial court.

Appellants present three points. First, a contention that the medical expert testimony was insufficient to establish a prima facie case; second, that it was error to permit the plaintiff to be brought into the courtroom during the trial on a stretcher 'and exhibited before the jury ostensibly for use by Dr. Kaplan as demonstrative evidence;' and third, that the trial court erred in denying the 'motion for new trial and/or remittitur grounded on the manifestly gross excessiveness of the verdict.'

On considering appellants' first contention in the light of the record and briefs we find it is without merit. Without attempting a detailed discussion of the extensive evidence, we conclude from an examination of the record that the jury's finding of negligence of appellants was supported by substantial competent medical evidence from which the jury could decide that contrary to proper and accepted medical practice, the plight of the plaintiff was proximately caused by the administration to her of several drugs in excessive strength or amounts, the individual and cumulative effects of which were such as to reduce the oxygen intake of the plaintiff to an extent and over a period sufficiently prolonged to cause her to suffer substantial brain damage, with resultant extensive permanent mental and physical impairment.

With regard to appellants' second contention, we find no error in the action of the trial court in permitting Mrs. Holl to be brought into the courtroom on a stretcher. As the plaintiff in the case, she was entitled to be present. However, the period she was in the courtroom was only a few minutes, during which the evidence as to her condition was shown in connection with the testimony of Dr. kaplan. In illustration of his testimony as to the condition of the plaintiff, the doctor was permitted to ask her certain questions to show her inability to speak or converse normally, and to request her to attempt certain motions to demonstrate her inability or limitations in such respects. The matter was one in the sound judicial discretion of the trial judge, and no abuse of discretion in that regard was shown. See Florida Greyhound Lines v. Jones, Fla.1952, 60 So.2d 396, 397.

There remains for our consideration the contention of excessiveness of the verdict. The size of this verdict was unusual, if not unprecedented, for such cases. However, it was the sum determined upon by the jury, and one which the experienced trial judge, on motion for new trial did not find to be such as to shock the judicial conscience, and which the judge was unwilling to disturb.

A party who assails the amount of a verdict as being excessive, has the burden of showing it is unsupported by the evidence, or that the jury was influenced by passion or prejudice. Breeding's Dania Drug Co. v. Runyon,147 Fla. 123, 2 So.2d 376, 377; Florida Power & Light Co. v. Robinson, Fla.1953, 68 So.2d 406, 415. A verdict which has been approved by the trial court as to amount should not be disturbed on appeal if it has a reasonable relation to the damages proven, in the absence of a showing that it imposes a hardship out of proportion to the injury suffered. Margaret Ann Super Markets, Inc. v. Scholl, 159 Fla. 748, 34 So.2d 238; Florida Power & Light Co. v. Robinson, supra.

In Sproule v. Nelson, Fla.1955, 81 So.2d 478, 481, 76 A.L.R.2d 1066, the Supreme Court, speaking through the late Justice Glenn Terrell, said:

'There is an element of speculation in most personal injury verdicts, but this is a matter for jury discretion. The court may review their discretion but not the amount awarded unless shown to be clearly arbitrary. * * *'

The determination of the amount of such damages is peculiarly within the province of the jury. Higbee v. Dorigo, Fla.1953, 66 So.2d 684; Merwin v. Kellems, Fla.1955, 78 So.2d 865; Sproule v. Nelson, supra.

In Upton v. Hutchison, Fla.1950, 46 So.2d 20, 21, the Supreme Court said: 'It is well settled that the verdict of a jury will not be disturbed by this court on appeal where there is ample substantial evidence to support such verdict. Nor will this court substitute its judgment for that of the jury as to the amount of damages to which the plaintiff is entitled, unless the amount found is so excessive as to indicate that the jury was influenced by passion, prejudice, corruption, or other improper motive. Loftin v. Dagley, 152 Fla. 831, 13 So.2d 311; Florida Motor Lines Corp. v. Shontz, 159 Fla. 518, 32 So.2d 248.' See also, Radiant Oil Co. v. Herring, 146 Fla. 154, 200 So. 376, 378; Rite Rate Cab Company v. McGee, Fla.App.1964, 159 So.2d 663, 664.

The argument presented on this point by the appellants is that because of the size of this verdict it should be concluded its determination 'was governed by sentimental or fanciful standards such as passion or sympathy,' and therefore that a new trial should be ordered.

In a case such as this, upon finding the defendants (appellants) liable for plaintiff's injuries as disclosed at the trial, the jury was entitled to allow as damages the sum it determined was proper based on the evidence, for the elements of damage as given them in charge by the court, including the elements of past and future pain and suffering and loss of ability to enjoy and lead a normal life, taking into consideration the plaintiff's life expectancy and her need for continuing medical and nursing care for the remainder of her life, which is found from the evidence to have been made necessary by the nature and the permanency of her injuries. Cf. Kolesar v. United States, S.D.Fla.1961, 198 F.Supp. 517.

At the time the plaintiff received her injuries in 1959, she was 35 years of age, married, and the mother of three children. She was rendered permanently disabled and...