Walker v. City of Miami, s. 75--1208
| Decision Date | 14 September 1976 |
| Docket Number | 75--1207,Nos. 75--1208,s. 75--1208 |
| Citation | 337 So.2d 1002 |
| Parties | George Edward WALKER, Sr., Individually, and as Administrator of the Estate of George Edward Walker, Jr., Appellant, v. The CITY OF MIAMI, a Municipal Corporation of the State of Florida, et al., Appellees. |
| Court | Florida District Court of Appeals |
Podhurst, Orseck & Parks, Arthur Lee Willner, Susan Goldman, Miami, for appellant.
Wicker, Smith, Blomqvist, Davant, McMath, Tutan, O'Hara and Richard A. Sherman, Fowler, White, Burnett, Hurley, Banick & Knight, Miami, for appellees.
Before PEARSON, HENDRY, and HAVERFIELD, JJ.
The appellant, George Edward Walker, Sr., has brought two actions arising out of the death of his son, one in his individual capacity and the other as administrator of the Estate of George Edward Walker, Jr., pursuant to Fla.Stat. §§ 768.03 and 46.021 (1971). 1 The causes were consolicated for trial and the separate appeals have been consolidated in this court. In addition, for trial purposes, the trial court consolidated with the Walker cases the case of Norman E. Lyon, whose son was killed in the same accident. Those appeals now before us are from the final judgments in the Walker actions.
The appellant received from the jury verdicts of $100,000.00 in damages in the wrongful death action and $15,000.00 in the survival action. Appellant's motion for a new trial was grounded upon a claimed inadequacy of the amount of the verdicts and, as basis therefor, the motion cited alleged errors in the court's ruling upon the pleadings as well as rulings on evidence and argument during trial. We have reviewed each of the assigned errors in light of their possible effect upon the claimed inadequacy of the verdict and find that the trial judge did not abuse his discretion in denying the motion for a new trial. See Alicot v. Dade County, Fla.App.1961, 132 So.2d 302.
Appellant urges error in the consolidation for trial of the Walker and the Lyon cases. The ruling of the trial court in consolidating these actions for trial is expressly provided for by RCP 1.270. At the time of the ruling, the negligence issues were identical. There was no distinctive or different claim for damages which, upon the face of the pleadings, made consolidation for trial inconvenient or prejudicial to the claims of plaintiff Walker. After the order of consolidation for trial and immediately prior to trial, the defendants admitted liability. If, at that time, it appeared to plaintiff Walker that some prejudice attached to him in the proof of his damages, relief should have been sought pursuant to subsection (b) of the rule expressly providing for an order for separate trial of any claim where the court determined that a separate trial would be in the furtherance of convenience or would avoid prejudice. The convenience of the joint trial where the trial was long and expensive is apparent. The motion claiming prejudice was made after the trial. The error assigned upon the order consolidating the causes for trial is not well-taken.
The record does not reveal prejudice during trial due to consolidation that can be said to have contributed to the claimed inadequate verdicts. The appellant points to claims of greater suffering by this father; however, the amount of the verdict rests with the jury and will not be set aside as being inadequate unless the inadequacy clearly appears or the record reveals prejudice or sympathy as a basis for the verdict. See West v. Food Fair Stores, Fla.App.1974, 305 So.2d 280. We recognize that a joinder of two plaintiffs for the trial of their separate damages would not ordinarily be made where the separate damages were the only issues to be tried. In the present case, where no mention of separate trials was made on the damage issues until after trial and the record of the trial does not reveal any substantial prejudice because of the joint trial, we hold that it was not error to deny the motion for new trial upon the ground of the claimed error of the joinder. See the rule in Ridarsick v. Amirkanian, Fla.App.1962, 147 So.2d 580; and Morin v. Halpern, Fla.App.1962, 139 So.2d 495, 2 A.L.R.3d 439.
A second claimed error in the court's rulings upon the pleadings is that the court erred in striking the plaintiff's claim for punitive damages. Punitive damages against the City of Miami were stricken on the basis of cases holding that...
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