Touchette v. Bould
| Decision Date | 26 December 1975 |
| Docket Number | Nos. 74--100,74--104,s. 74--100 |
| Citation | 324 So.2d 707 |
| Parties | Mitchell C. TOUCHETTE, Appellant, v. Dorothy BOULD et al., Appellees. U.S. CONCRETE PIPE COMPANY, a Florida Corporation, Appellant, v. Dorothy BOULD et al., Appellees (three cases). HARTFORD ACCIDENT & INDEMNITY COMPANY, Appellant, v. Dorothy BOULD et al., Appellees. Mitchell C. TOUCHETTE and Hartford Accident & Indemnity Company, Appellants, v. Dorothy BOULD et al., Appellees. to 74--106, 74--235 and 74--236. |
| Court | Florida District Court of Appeals |
Sam Daniels, Miami, for appellant-Hartford Accident & Indemnity Co.
Michael B. Davis of Walton Lantaff Schroeder Carson & Wahl, West Palm Beach, for appellant-Touchette.
James A. Smith and Richard Sherman of Wicker Smith Pyszka Blomqvist & Davant, Miami, for appellant-U.S. Concrete Pipe Co.
Edward A. Perse of Horton & Perse, and Fuller, Brumer, Moss, Cohen & Rodgers, Miami, for appellees-Bould, Simonson and Touchette.
Appellants, defendants in consolidated wrongful death and survivorship actions, 1 seek review of (1) adverse final judgments rendered pursuant to jury verdicts, and (2) certain postjudgment orders relating to costs and insurance coverage.
Sixty-six year old Edward Simonson and his sixty-four year old wife, Alice, were killed instantly when the vehicle they were occupying was struck from the rear by a tractor-trailer unit operated by Mitchell Touchette while in the course and scope of his employment by U.S. Concrete Pipe Company, the owner of the truck. Hartford Accident & Indemnity Company was the latter's liability insuror.
The decedents were not survived by any minor children and thus the cause of action for their wrongful death accrued to appellee, Dorothy Bould, who was the surviving natural mother of the decedent Alice Simonson and dependent upon both decedents for her support. The verdict and judgment awarded the wrongful death plaintiff, Dorothy Bould, $100,000 compensatory damages against Mitchell Touchette and U.S. Concrete Pipe Company.
Edward Simonson, Jr., an adult son of the decedents, qualified as personal representative of their respective estates and was the plaintiff in the survivorship action. The verdict and judgment awarded the survivorship plaintiff $65,000 compensatory damages against Mitchell Touchette and U.S. Concrete Pipe Company, $800,000 punitive damages against U.S. Concrete Pipe Company, and $5,000 punitive damages against Mitchell Touchette.
By postjudgment motions the court entered an order granting judgment in favor of U.S. Concrete Pipe Company against Hartford Accident & Indemnity Company 'to the maximum limits of their (sic) insurance coverage of $500,000,' and by a separate order taxed the plaintiff's costs. Both of these orders are the subject of separate interlocutory appeals.
For reasons hereafter discussed, we conclude that (1) the verdict and judgment for the wrongful death plaintiff, Dorothy Bould, is so grossly excessive and contrary to the law and evidence as to require reversal and remand for a new trial; (2) the verdict and judgment for the plaintiff, Edward Simonson, Jr., for compensatory damages in the survivorship action is so grossly excessive and contrary to the law and evidence as to require reversal and remand for a new trial; (3) the remand for a new trial on the compensatory damage claim of the personal representative requires reversal and remand for a new trial on the punitive damage claim as well. The interest of justice will be best served by a new trial on all issues.
This cause of action vested in Dorothy Bould as a person dependent upon the decedents for support. The Single element of damage is the pecuniary value of the loss of support suffered by the plaintiff. W. B. Harbeson Lumber Co. v. Anderson, 102 Fla. 731, 136 So. 557 (1931); Duval v. Hunt, 34 Fla. 85, 15 So. 876 (1894).
Stated most favorably to appellee, the evidence established the following: Dorothy Bould, the mother of decedent Alice Simonson, was eighty-seven years old when Edward and Alice Simonson were killed, and ninety years old at the time of trial. She had been living with and supported by the Simonsons for twenty-five years prior to their death and enjoyed a close and stable relationship with them. At the time of their death she was in excellent health, had a very acute mind, was well-oriented to her surroundings, totally ambulatory and led a relatively normal life. The value of the support which the Simonsons furnished her had been stated by them on their income tax returns as being $1,000 per year. Approximately two years after the accident, Mrs. Bould moved to a nursing home where she remained at a cost to her of $5,720 a year, presumably receiving the equivalent of the support she had received in the Simonson home. In the three-year interval between the accident and the trial, Mrs. Bould remained in reasonably good health and sound mind although she became confined to a wheelchair. At age ninety it was shown that under the standard mortality table she had a reasonable life expectancy of approximately three and a half years.
Appellants urge that Mrs. Bould's damages can be determined with almost mathematical precision, i.e., $1,000 a year for the first two years following the accident, then $5,720 for the third year when she moved into the nursing home, and $17,192 2 for the future, yielding a total sustainable verdict of $24,912. However, the concept that this type of damage award can be computed with mathematical certainty was rejected by our Supreme Court in the case of Cudahy Packing Co. v. Ellis, 105 Fla. 186, 140 So. 918 (1932). Likewise, in that same case the court made it clear that the jury's verdict cannot be predicated on conjecture, fancy caprice or speculation, but that, 'the jury must rest its verdict on considerations of real substance.' 140 So. at 919.
At trial Mrs. Bould's claim for loss of support necessarily fell into two parts, the past loss and the future loss. Indulging every assumption in favor of the validity of the verdict, the jury could have included an allowance of an much as $17,160 (three years at $5,720 per year) for the past loss of support. This would mean, of course, that the jury necessarily included in the verdict an allowance of approximately $83,000 as the present value of the future loss of support. Mrs. Bould was then are ninety. While the jury was certainly not bound by the mortality table life expectancy of three and a half years, and could reasonably have found that the cost to her to replace the lost support would increase above $5,720 per year, there are no matters of real substance in the evidence which could fairly support an award of this magnitude as the present value of the future loss of support. By way of illustration, $83,000 invested at 5% Compound interest would yield an annuity slightly over $7,000 per year for 18 years. Even indulging the jury in the broadest possible discretion, such an award finds no support in the record and can only be characterized as being the result of conjecture, fancy caprice or speculation on the part of the jury. It was error to deny the defendants' motion for a new trial on the grounds of the excessiveness of this verdict.
Edward Simonson, Jr., son of the decedents, was the personal representative of their respective estates and the plaintiff in the survivorship action brought under Fla.Stat. § 46.021 (1971). The proper elements of damage recoverable under this statutory provision are the decedent's pain and suffering, medical expenses, loss of earnings between the time of the accident and death, funeral expenses, and (in an appropriate case) punitive damages. See, Martin v. United Security Services, Inc., 314 So.2d 765 (Fla.1975); Atlas Properties, Inc. v. Didich, 226 So.2d 684 (Fla.1969); Sinclair Refining Co. v. Butler, 190 So.2d 313 (Fla.1966); Ellis v. Brown, 77 So.2d 845 (Fla.1955); Ake v. Birnbaum, 156 Fla. 735, 25 So.2d 213 (1946).
The decedents having been killed instantly, there was no conscious pain and suffering, no medical expense and no loss of earnings. Plaintiff did establish funeral expenses and property damage totalling $3,945.
Under the survival statute there can be no recovery by a personal representative for loss of the decedent's prospective estate, Ellis v. Brown, supra; Atlantic Coast Line Railroad Company v. Turpak, 225 So.2d 340 (2nd DCA Fla.1969). Nonetheless, this element of damage was plead by the plaintiff and tried without objection by defendants (and hence by implied consent), and the jury was instructed thereon with the acquiescence of the defendants. Appellee contends that if it was error for the jury to be instructed on loss of prospective estate as an element of plaintiff's damages, this was invited error which cannot be remedied on appeal. See, e.g., Bianchi v. State, 272 So.2d 8 (3rd DCA Fla.1973). Appellants contend that it is fundamental error involving lack of subject matter jurisdiction, which cannot be waived and can be raised by the parties at any time. See, 8 Fla.Jur., Courts, § 114 (1956); Rule 1.140(h) RCP; Rule 3.7(i) F.A.R. We need not decide that precise issue however, because we conclude that even if defendants may not now question the inclusion of this element of damages in the instructions to the jury, the verdict is without sufficient evidence to support it, and therefore the judgment must be reversed. Renuart Lumber Yards, Inc. v. Levine, 49 So.2d 97 (Fla.1950).
At the time of his death Edward Simonson was retired from his employment with a bus company, receiving retirement benefits of $138 a month. He also received (jointly with his wife) social security in the amount of $254 a month. For years prior to his death, he had a part-time, in-home job repairing radios and television sets which produced approximately $50 a week in income while he was employed...
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