Cory v. Greyhound Lines, Inc.

257 So. 2d 36
CourtSupreme Court of Florida
DecidedDecember 8, 1971
Docket40880
StatusPublished
Cited by27 cases

This text of 257 So. 2d 36 (Cory v. Greyhound Lines, Inc.) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cory v. Greyhound Lines, Inc., 257 So. 2d 36 (Fla. 1971).

Opinion

257 So.2d 36 (1971)

Melba I. CORY, As Surviving Widow of Fay C. Cory, Deceased and As Executrix of the Estate of Fay C. Cory, Deceased, Petitioner,
v.
GREYHOUND LINES, INC., a California Corporation, Respondent.

No. 40880.

Supreme Court of Florida.

December 8, 1971.
Rehearing Denied February 15, 1972.

*37 Alan R. Schwartz, of Horton & Schwartz, Miami, and James H. Nance, Melbourne, for petitioner.

J. Compton French and Thorwald J. Husfeld, of Landis, Graham, French, Husfeld, Sherman & Ford, DeLand, for respondent.

ADKINS, Justice.

By petition for certiorari, we have for review a decision of the District Court of Appeal, Fourth District (Cory v. Greyhound Lines, Inc., 243 So.2d 478), which allegedly conflicts with a prior decision of the District Court of Appeal, Second District (Atlantic Coast Line Railroad Company v. Turpak, 225 So.2d 340), on the same point of law. Fla. Const., art. V, § 4, F.S.A.

In the early morning hours of July 12, 1966, a greyhound bus, heading north through the fog, struck an East Volusia Mosquito Control District fogging machine, creeping slowly in the same direction. In the resulting crash and gasoline explosion, Fay C. Cory, the operator of the fogging machine was burned to death. His widow, Melba I. Cory, brought two separate actions against Greyhound Lines, Inc., to recover damages arising out of Mr. Cory's injuries and death. One action was brought individually under the wrongful death statute. The other action was brought by Mrs. Cory as Executrix of her deceased husband's estate under the survivor statute.

The cases were consolidated for jury trial and the following verdicts were returned:

"We, the jury, find for the Plaintiff, Melba I. Cory, as the surviving widow of Fay C. Cory, and against the Defendant, Greyhound Lines, Inc., and assess her damages in the amount of $11,192.00. So say we all. Signed G. Robert Jarrett, Foreman, January 14, 1970."
"We, the jury, find for the Plaintiff, Melba I. Cory, as Executrix of the Estate of Fay C. Cory, deceased, and against the Defendant, Greyhound Lines, Inc., and assess her damages in the amount of $147,000.00. So say we all. Signed G. Robert Jarrett, Foreman, dated January 14, 1970."

The exact amount requested in the survival case ($11,192.00) was assessed in the wrongful death action. The jury assessed $147,000.00 (slightly more than had been requested in the wrongful death case) in the survival action.

Thereupon, the following occurred:

"THE COURT: Let me see the verdicts again please?
"Could Counsel approach the bench please? There is no testimony of this amount of the Executrix Estate. I will call this to their attention and they can retire and consider their verdicts.
"(This concludes discussion at the bench)
"THE COURT: Ladies and Gentlemen, it appears to the Court that there is no testimony that would warrant the verdict for Melba I. Cory as Executrix of the Estate in the sum of $147,000.00. Likewise, as far as the surviving widow, *38 of course, this is up to you, and the Court is going to send you back to the juryroom to deliberate further with regard to the awarding of damages to the widow and awarding of damages to the estate.
"In other words, the Court is of the opinion that certainly it appears to the Court that the verdict for the widow is approximately the sum that was asked for by the executrix, by the personal representatives of the estate, and it appears that perhaps you have confused the two, and I'm going to ask you to return to the juryroom and deliberate further, based upon the instructions I have just given.
"You may return to the juryroom."

The jury returned to the courtroom and rendered the following verdicts:

"We, the jury, find for the Plaintiff, Melba I. Cory, as the surviving widow of Fay C. Cory, and against the Defendant, Greyhound Lines, Inc., and assess her damages in the amount of $80,192.00. So say we all, Mr. G. Robert Jarrett, Foreman, Jauary 14, 1970."
"We, the jury, find for the Plaintiff, Melba I. Cory, as Executrix of the Estate of Fay C. Cory, deceased, and against the Defendant, Greyhound Lines, Inc., and assess her damages in the amount of $78,000.00. So say we all, Mr. G. Robert Jarrett, Foreman, January 14, 1970."

The jury was then polled and a discussion took place out of the presence of the jury. Mr. James H. Nance, the attorney for plaintiff, suggested that the jury had put the Executrix award on the wrongful death verdict and the wrongful death award on the Executrix verdict when they originally returned. Thereupon, the following occurred:

"MR. HUSFELD: If the Court please, what Mr. Nance is asking is to tell them what damages should be in each case. It is capricious, and I feel that this Court should at this time declare a mistrial and declare the verdicts not the result and judgment of the jury, but capriciously done.
"THE COURT: Frankly, I was in accord with the first verdict, that it appeared to me, that because they had two, that they had them backwards, but after they went out, though Counsel asked for, if I remember, $11,192.00, if they find pain and suffering to warrant the larger verdict, I'm of the opinion now, that the Court has gone about as far as it can go.
"MR. NANCE: Judge, obviously the jury is confused on the element.
"THE COURT: That may be true Counsel, but it also may not be true, and I'm not sure of my authority to pry into this jury's deliberations further. I thought I had made it clear what appeared to the Court, and unless Counsel is in accordance to what I do next, I'm inclined to bring this jury back in and discharge them." (Emphasis supplied.)

The defendant filed motion for a new trial on the issues of both liability and damages. The plaintiff filed a motion for entry of final judgments in which she sought the entry of final judgments in accordance with the alleged intention of the jury as incorrectly expressed, in the first verdicts, by the entry of a judgment of $147,000.00 for the plaintiff in the wrongful death case, and $11,192.00 for the plaintiff's estate in the survivor case. The trial judge denied plaintiff's motion for entry of final judgments and granted defendant's motion for a new trial on the issue of damages alone. The order stated:

"That there is no reason to disturb the jury's findings as to the questions of liability, the Court further finds
"That the verdicts may be based upon confusion in the minds of the jurors as to elements of damages. The Court `thinks' that the jury intended the original verdict to render the sum requested *39 in the Executrix verdict ($11,192.00) and the sum of $147,000.00 in favor of the Surviving Widow. Upon being sent back to the Jury Room with the verdicts, it appears that the jury took $69,000.00 from the Executrix verdict and added it to the widow's verdict, and the Court cannot ignore the fact that approximately $69,000.00 was the sum testified to by Dr.

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