Toll v. Waters

• Decision Date: 30 May 1939
• Citation: 189 So. 393,138 Fla. 349
• Parties: TOLL et al. v. WATERS et al.
• Court: Florida Supreme Court

189 So. 393

138 Fla. 349

TOLL et al. v. WATERS et al.

Florida Supreme Court

May 30, 1939

Rehearing Denied June 9, 1939.

Error to Circuit Court, Seminole County; M. B. Smith, Judge.

Suit by Lucile S. Waters, joined by her husband and next friend, G R. Waters, and another, against E. J. Toll and another, to recover for injuries sustained in an automobile collision. To review a judgment for the plaintiffs, the defendants bring error.

Judgment affirmed.

BROWN J., dissenting in part.

COUNSEL

Maguire & Voorhis, of Orlando, for plaintiffs in error.

Ernest F. Housholder, of Sanford, for defendants in error.

OPINION

PER CURIAM.

This case is here on writ of error to review a judgment in favor of the plaintiffs entered by the Circuit Court of Seminole County, Florida. Lucile S. Waters sustained permanent injuries, and, joined by her husband, G. R. Waters, filed suit in the lower court. The husband likewise sought to recover damages in the same suit. The declaration is in two counts. The first count charges the negligent operation of an automobile in the following language, viz., that then and there a certain automobile was so carelessly and negligently driven and operated by the defendant E. J. Toll at the intersection of Seventh Avenue and Laurel Street in the City of Sanford that the said automobile was run and driven upon against and collided with the automobile in which the plaintiff Lucile S. Waters was then riding, and with such force and violence that the automobile in which the plaintiff was riding was overturned, whereby the plaintiff, Lucile S Waters was severely injured; that the defendant W. J. Toll was the owner of said automobile and the defendant E. J. Toll was then and there driving and operating the automobile of the defendant W. J. Toll, with the knowledge and consent of W. J. Toll. The second count contains similar allegations.

The case went to trial on the following pleas: (1) W. J. Toll denied the ownership of the automobile driven by E. J. Toll; (2) plea of not guilty; (3) contributory negligence; (4) special plea of contributory negligence on the part of Lucile S. Waters in violating an ordinance giving the right of way to all vehicles traveling upon Seventh Street in the City of Sanford; (5) other pleas were filed but are not necessary to recite.

The issues were submitted to a jury with instructions, and verdict in the sum of $10,000 was returned for Lucile S. Waters, and a verdict for $1,000 was returned for G. R. Waters, her husband, against defendants E. J. Toll and W. J. Toll. The lower court denied a motion for a new trial and entered final judgment for Lucile S. Waters in the sum of $10,000 and ordered a remittitur on the part of G. R. Waters and approved a judgment in his behalf for the sum of $290.40. The record has been perfected and is here for consideration on a number of assignments of error.

One of the first questions for decision is: Did the plaintiff adduce sufficient evidence to establish the ownership of the car in W. J. Toll and operated at the time of the collision by his brother E. J. Toll?

The record shows that William J. Toll, on June 8, 1935, made application for a title certificate for the car and swore therein that he was the owner thereof; and likewise on January 6, 1936, in his application sworn to stated that he was the owner of the car, and at no time denied ownership thereof until the wreck occurred. He stated when a witness that the car was bought and paid for by the United Lumber Company, of which he was Manager, Secretary and Treasurer, that notes representing deferred payments on the car were given in the name of United Lumber Company and upon maturity paid by it. We think there is sufficient evidence in the record of ownership of the car in the defendant William J. Toll to submit the issue to the jury, and that this assignment is without merit. See Saunders v. Crawford, 122 Fla. 13, 164 So. 526, Vol. 5 Am.Jur. 570, par. 99; Farrelly v. Heuacker, 118 Fal. 340, 159 So. 24.

The following charge is assigned as error:

'As to the plaintiff, Lucile S. Waters, her claim for damages is for physical pain and suffering, past, present and future, permanent injury and the loss of her right arm, also the impairment of her ability to work.

'As to pain and suffering the law declares that there is no standard by which to measure it except the enlightened conscience of impartial jurors, the enlightened conscience of each of you. It would be your duty to determine from the evidence what sort of injuries the plaintiff received, if any, their character as producing or not producing pain, the mildness or intensity of the pain; its probable duration, and allow such sum as would fairly compensate her for her pain and suffering, if any, such sum as would receive the approval of the enlightened conscience of each of you, and if, in considering the case, you reach the conclusion that the plaintiff, Lucile S. Waters, is entitled to damages for future pain and suffering, in fixing the amount thereof you would bear in mind and give consideration to the fact that the plaintiff is receiving a present cash consideration for damages not yet sustained.'

It is settled law in Florida that in passing upon a single instruction or charge assigned as error, the same should be considered in connection with other charges or instructions bearing upon the same subject. See Lewis v. State, 55 Fla. 54, 45 So. 998. It is contended that the instruction was bad because: (a) That the charge should have requested that future damages, if any, should be reduced to present value; (b) the jury was permitted to exercise its discretion in arriving at the present cash value for future damages. Counsel cite a number of decisions of this Court, as well as authorities from other jurisdictions, upon which they rely to sustain their position. The testimony shows that Mrs. Lucile S. Waters lost her right arm in this collision; that she was a young married woman; the loss of her arm affected her ability to do her household duties; she suffered pain not only in the loss of her arm, but her nervous system was affected and will continue so to be in the future. The Court charged that these several items should be reduced to a present cash value. We have studied the charge, supra, in light of criticism of counsel for plaintiff in error and have examined the authorities cited by them, but we are unable to agree with the conclusion reached by counsel. See Warner v. Ware, Fla., 182 So. 605.

It is next contended that reversible error occurred when the trial court refused to give the following charge at the request of the defendant below, viz.:

'14. You are further instructed that if the injury of Lucile S. Waters was caused solely by her own negligence, then, of course, the defendants are not liable. Public policy requires that everyone shall exercise reasonable care and diligence for the protection of his or her own person, and when the failure to do this concurs with the mere negligence of another and proximately causes injury, there can be no recovery; and even though you should find in this case that E. J. Toll was negligent and that such negligence proximately caused injury to Lucile S. Waters, but you further find that this negligence was concurrent with her failure to exercise reasonable care and diligence for the protection of herself, there can be no recovery by plaintiffs, and if you so find you must return a verdict for the defendants.

Counsel cite the case of Florida R. Co. v. Dorsey, 59 Fla. 260, 52 So. 963, to sustain their contention, while counsel for plaintiff below contend that the following charge given by the trial court on the exact subject or point are sufficient, viz.:

'You are further instructed that if the plaintiff, Lucile S. Waters, was guilty of any act of negligence which directly contributed to her injury, or was guilty of any lack of ordinary care on her part, whether the act be an actual one or an omission to do what she ought to have done under the circumstances and such lack of care, act or omission contributed to the accident and without which the accident would not have occurred, then you cannot go further and apportion the accident or injury, but the plaintiff's contributory negligence in such case, if you find it to be the case, defeats recovery and your verdict must be for the defendants.

'It is the duty of both plaintiff and defendant to use ordinary care.

'I charge you that ordinary care is that degree of care which a person of ordinary prudence, under the particular circumstances, is presumed to exercise to avoid injury, such care is required to be in proportion to the danger to be avoided and the fatal consequences that may result from neglect.

'I charge you that the plaintiffs cannot recover against the defendants unless you believe from a preponderance of the evidence that the plaintiff, Lucile S. Waters, was injured by the negligence of the defendant, E. J. Toll, in the manner alleged in the declaration.'

The following authorities are cited: Jacksonville, Tampa & K. W. Ry. Co. v. Peninsular Land, etc., Co., 27 Fla. 1, 157, 9 So. 661, 17 L.R.A. 33, 65; Tampa Electric Co. v. Bazemore, 85 Fla. 164, 96 So. 297.

When the charge or instruction on the question of the negligence of Lucile S. Waters as given by the trial court is considered in the light of the entire charges so given and considered in connection with the requested charge on the same subject by counsel for defendant below, the charge as given by the trial court of its own volition is free from material error and states a correct principle of law for the guidance of the jury in its deliberation. We are unable to say that reversible error occurred. See Atlantic Coast Line R. Co v....