De La Vallina v. De La Vallina

• Decision Date: 05 January 1926
• Citation: 90 Fla. 905,107 So. 339
• Parties: DE LA VALLINA v. DE LA VALLINA et al.
• Court: Florida Supreme Court

107 So. 339

90 Fla. 905

DE LA VALLINA v. DE LA VALLINA et al.

Florida Supreme Court, Division B.

January 5, 1926

Error to Circuit Court, Hillsborough County; F. M. Robles, Judge.

Action by Francisco De la Vallina against Teresa Canedo De la Vallina and others. Verdict for plaintiff. A new trial was ordered on failure of plaintiff to enter a remittitur, and plaintiff brings error.

Affirmed.

Syllabus by the Court

SYLLABUS

Generally in requiring remittitur to correct an excessive verdict or judgment, amount of excess must clearly appear from record in which case court may require remittitur or grant new trial. In requiring the entry of a remittitur to correct an excessive verdict or judgment, the general rule seems to be that the amount of the excess must clearly appear from the record, and then, if on the whole showing made by the record it appears that the damages awarded by the jury are excessive, the court may require a remittitur for the amount of the excess on condition that the judgment stand for the balance, otherwise a new trial will be granted.

Amount of excess of verdict or judgment in deciding on remittitur may be arrived at through any process of reasoning controlled by facts in record and guided by honest and sincere purpose to do justice. The amount of the excess cannot always be worked out with mathematical precision, nor do we think the rule contemplates this. It is, of course, preferable, if capable of being determined to mathematical exactness, but may be arrived at through any process of reasoning actuated and controlled by the facts in the record, and guided by an honest, sincere purpose to do justice to both parties to the cause in the light of these facts.

In granting new trial, if remittitur is not entered, indication by court of amount which he would not feel at liberty to pronounce excessive is not substitution of court's judgment for that of jury (Rev. Gen. St. 1920, §§ 2655 2905). Except in cases where it is clear that the jury was influenced by prejudice, bias, or other improper influence the trial court cannot substitute its judgment for that of the jury, but this rule is not violated in a case granting a new trial on condition that a remittitur is not entered because the court did not indicate what amount he would have given had he been on the jury, but only such amount as he would not feel at liberty to pronounce excessive.

Stronger showing is required to reverse order allowing new trial than to reverse one denying it. A stronger showing is required to reverse an order allowing a new trial than to reverse one denying it.

COUNSEL

Dickenson & Diaz, of Tampa, for plaintiff in error.

OPINION

TERRELL J.

Subsequent to dissolution of the attachment plaintiff in error brought an action against defendant in error on an attachment bond for the purpose of recovering damages for wrongful attachment. The declaration was in the usual form, and the cause went to trial on a traverse of the declaration, as provided in section 2655, Revised General Statutes of Florida. The jury returned a verdict for the plaintiff in error in the sum of $1,089.82, on which final judgment was entered.

Motion for new trial was seasonably made and submitted, and the trial court entered an order permitting the plaintiff to enter a remittitur for $500 within 30 days, in default of which a new trial would be granted without further order. Plaintiff declined to enter the remittitur, and took writ of error from this court to the order granting the new trial. Section 2905, Rev. Gen. Stats. 1920.

It is contended by plaintiff in error that the trial court in ordering the remittitur under the facts in this cause clearly usurped the function of the jury, which he cannot do.

In requiring the entry of a remittitur to correct an excessive verdict or judgment, the general rule seems to be that the amount of the excess must clearly appear from the record, and then, if on the whole showing made by the record it appears that the damages awarded by the jury are excessive, the court may require a remittitur for the amount of the excess on condition that the judgment stand for the balance, otherwise a new trial will be granted. McLean v Spratt, 20 Fla. 515; Florida Ry. & Nav. Co. v. Webster, 5 So. 714, 25 Fla. 394; Postal Telegraph-Cable Co. v. Scott, 79 So. 767, 76 Fla. 336; ...