Westbrook v. All Points, Inc., 79-1474

• Decision Date: 24 June 1980
• Docket Number: No. 79-1474,79-1474
• Citation: 384 So.2d 973
• Parties: Eugene WESTBROOK and Westbrook Motors, Incorporated, Appellants, v. ALL POINTS, INCORPORATED and Integrity Insurance Company, etc., Appellees.
• Court: Florida District Court of Appeals

Page 973

384 So.2d 973

Eugene WESTBROOK and Westbrook Motors, Incorporated, Appellants, v. ALL POINTS, INCORPORATED and Integrity Insurance Company, etc., Appellees.

No. 79-1474.

District Court of Appeal of Florida, Third District.

June 24, 1980.

H. C. Starkweather, Miami, for appellants.

Walton, Lantaff, Schroeder & Carson and George W. Chesrow, Miami, for appellees.

Before HENDRY and BASKIN, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.

HENDRY, Judge.

Appellant, Eugene Westbrook, sought damages below for injuries sustained in a vehicular collision with the appellee, All Points, Inc. After weighing the evidence, which included appellant's testimony, testimony of appellant's and the court's medical experts and defendant's surveillance film footage (which tended to dispute the medical experts' testimony), the jury returned a verdict in favor of appellant, limiting his damage award, however, to the amount of his medical expenditures. We review the final order of the trial court, in which appellant's motion for new trial was denied.

The scope of our inquiry is delimited by the scope of the trial court's authority with regard to motions for new trial. The narrow issue before us is whether the trial judge abused his discretion in denying appellant's motion. Lassitter v. International Union of Operating Engineers, 349 So.2d 622, 627 (Fla.1977).

When a motion for a new trial is made, it is directed to the sound, broad discretion of the trial judge (citations omitted), who because of his contact with the trial and his observation of the behavior of those upon whose testimony the finding of fact must be based is better positioned than any other one person fully to comprehend the processes by which the ultimate decision of the triers of fact, the jurors, is reached . . . .

Cloud v. Fallis, 110 So.2d 669, 673 (Fla.1959) (citation omitted).

The criteria by which a trial court properly assesses the need for a new trial have been the cause of not a little judicial confusion in the past. It was with concern for the divergent standards employed in the several state appellate districts that the Florida Supreme Court definitively addressed the issue in Cloud, supra, 110 So.2d at 673:

When the judge, who must be presumed to have drawn on his talents, his knowledge and his experience to keep the search for the truth in a proper channel, concludes that the verdict is against the manifest weight of the evidence, it is his duty to grant a new trial, and he should always do that if the jury has been deceived as to the force and credibility of the evidence or has been influenced by considerations outside the record . . . .

(citation omitted). The court has had recent occasion to reaffirm its adherence to the test stated in Cloud. See Cassat Avenue Mobile Homes, Inc. v. Bobenhausen, 363 So.2d 1065 (Fla.1978); Wackenhut Corp. v. Canty, 359 So.2d (Fla.1978).

(We note that a parallel test was enunciated in Griffis v. Hill, 230 So.2d 143, 145 (Fla.1969): "The test to be applied in determining the adequacy of a verdict is whether a jury of reasonable men could have returned that verdict." That language appears to represent a rewording of, rather than a deviation from, the standard set forth in Cloud ; the two formulations have been used conjunctively. See, e. g., White v. Martinez, 359 So.2d 7, 10 (Fla. 3d DCA 1978); Perenic v. Castelli, 353 So.2d 1190 (Fla. 4th DCA 1977), cert. denied 359 So.2d 1211 (Fla.1978).)

The appellant contends that the jury's zero verdict for pain and suffering, mental anguish, disability and loss of earnings is unsupportable under Florida law. We disagree. ¹

The Florida rule has been concisely stated by the United States Court of Appeals for the Fifth Circuit: "It would . . . appear that a zero verdict in Florida may be sustained only where there is conflicting evidence as to whether the plaintiff was in fact injured . . . ." Parker v. Wideman, 380 F.2d 433, 437 (5th Cir. 1967). In that case, testimony regarding the plaintiff's injuries was uncontroverted and unimpeached. Similarly, in Pickel v. Rosen, 214 So.2d 730 (Fla. 3d DCA 1968), this court found that a new trial was warranted by the jury's failure to award damages for pain and suffering, where it had awarded medical expenses. The decision to reverse was grounded on the undisputed facts that the plaintiff had suffered a severe injury, and that the treatment was painful. In Grossman v. Short, 235 So.2d 11 (Fla. 3d DCA 1970), cert. discharged 245 So.2d 217 (Fla.1971), we reversed for new trial a final judgment recompensing neither medical expenses nor the...