Goldstein v. Walters

126 So. 2d 759
CourtDistrict Court of Appeal of Florida
DecidedJanuary 27, 1961
Docket1879
StatusPublished
Cited by15 cases

This text of 126 So. 2d 759 (Goldstein v. Walters) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Goldstein v. Walters, 126 So. 2d 759 (Fla. Ct. App. 1961).

Opinion

126 So.2d 759 (1961)

Bessie GOLDSTEIN and Alex Goldstein, Appellants,
v.
Henry Earl WALTERS, Appellee.

No. 1879.

District Court of Appeal of Florida. Second District.

January 27, 1961.
Rehearing Denied February 23, 1961.

Sylvan B. Burdick, Potter, Langbein, Burdick & Silvian, West Palm Beach, for appellants.

W.C. Owen, Jr., Miller, Cone, Owen, Wagner & Nugent, West Palm Beach, for appellee.

ALLEN, Chief Judge.

The appellants were the plaintiffs in the lower court in an action for damages for personal injuries caused by a collision between plaintiffs' automobile and the appellee-defendant's automobile. The court directed a verdict in favor of plaintiffs on the issue of liability and the question of damages was submitted to the jury. A verdict of $1,500 was awarded Alex Goldstein and a verdict of no damages was awarded Bessie Goldstein. The plaintiffs' motion for new trial on the amount of damages was denied. *760 This appeal raises primarily the question of the adequacy of the verdicts.

The plaintiff, Alex Goldstein, was driving his automobile in which Bessie Goldstein, his wife, was a passenger, along state road No. 809 in Palm Beach County, when the defendant drove onto the highway from the side thereof and sideswiped the plaintiffs' automobile. The defendant was allegedly intoxicated and was driving at a rate of approximately 15 miles per hour. The plaintiff was traveling at approximately 15-20 miles per hour. These facts are undisputed and the issue of liability seems to be unquestioned. The conflict in evidence and testimony concerns the extent of plaintiffs' injuries and damages.

Four days after the accident, both plaintiffs went to see a general practitioner who observed some swelling in Mr. Goldstein's right knee and swelling in Mrs. Goldstein's right ankle. Mr. Goldstein was treated by the practitioner in July, twice in October, 1958, and again in April, 1959, after which he was operated on by an orthopedic surgeon on May 11, 1959. Mr. Goldstein made seven post operative visits. There are conflicts in the testimony but it appears that Mr. Goldstein had been treated for knee trouble prior to the accident. The appellant-husband, Mr. Goldstein, proved up a total of $1,020.25 for medicine, hospital and doctors' bills, which sum includes Mrs. Goldstein's expenses also. In his pretrial deposition, Mr. Goldstein stated that he lost approximately a total of two weeks' work at $100 per week prior to the operation. At the trial, on direct, he testified that he lost eight weeks' pay altogether, which included the post operative recovery period of five weeks.

Appellant-wife, Mrs. Goldstein, has suffered from asthma for several years. There was medical testimony that her right ankle was swollen; that she complained of pain in her neck, shoulders and arm; that she complained of her back; but that her asthmatic coughing could aggravate the muscular ailments. Doctor White, defendant's medical witness who had examined Mrs. Goldstein, stated that he could not say positively that her ailments were in no way related to the accident.

The lower court stated in denying the motion for new trial:

"This cause was duly presented January 28, 1960 by counsel for the parties, after notice, and upon consideration thereof, It Is Ordered and Adjudged that plaintiffs' motion, filed December 4, 1959, for a new trial, is denied. It seems to the court that it was proper to infer from the evidence that the automobiles in question did not collide with much force. The jury was justified in drawing the inference that plaintiffs suffered little or no damage."

The appellants pose two questions:

"Are the verdicts, for husband for an amount less than his proved special damages and for wife for `none', legally inadequate?"

And:

"Where there is no proof of loss of earnings in the past or future, is a housewife entitled to an instruction that permits the jury to find loss of earning power?"

The appellants contend before this court that the verdict for the husband in an amount less than his out-of-pocket damages and the verdict for the wife for no damages are "legally inadequate," and therefore plaintiffs are entitled to a new trial. As was originally noted in Radiant Oil Co. v. Herring, 146 Fla. 154, 200 So. 376, 377, at common law a new trial based on inadequacy of damages was not permissible but the general rule now is that a verdict for grossly inadequate damages stands on the same basis as a verdict for excessive damages and a new trial may as readily be granted in the one case as in the other.

In the Radiant Oil Company case the plaintiff-father and his minor plaintiff-daughter *761 instituted an action seeking damages for injuries to the daughter as a result of negligent operation of one of the oil company's trucks. The issues were tried before a jury and the minor plaintiff recovered $1,000 and her father recovered $1,767.05, the exact amount of his claimed and proved medical expenses. Motions for new trial were filed which the lower court denied as to the father but granted a new trial on the issue of damages for the minor on the basis that her verdict was inadequate. The oil company appealed from the judgment in favor of the father and from the order granting the minor a new trial on the issue of damages. In commenting on the setting aside of a jury verdict and granting a new trial, the Supreme Court stated:

"It has been held that under the old common law rule, a motion for new trial for inadequacy of damages should not be granted but the general rule now seems to be that a verdict for grossly inadequate damages stands on the same ground as a verdict for excessive or extravagant damages and that a new trial may as readily be granted in one case as the other. Such verdicts will not be set aside for the mere reason that they are less than the Court thinks they should be. It must be shown that the verdict was induced by prejudice or passion, some misconception of the law or the evidence or it must be shown that the jury did not consider all the elements of damage involved, missed a consideration of the issues submitted or failed to discharge their duty as given them by the Court's charge. 20 R.C.L. 283." (Emphasis added.)

In Allen v. Powell, 152 Fla. 443, 12 So.2d 378, 379, plaintiff's decedent had been killed while on duty in the employment of the defendants, the receivers of the Seaboard Air Line Railway Co. The plaintiff filed suit for damages alleging that defendants' negligence was the proximate cause of the death of plaintiff's husband. The complaint alleged that plaintiff's husband had been caused to fall from the running board of defendants' train by another employee who was attempting to walk past the decedent. One witness testified that the death was caused in the manner alleged in the complaint. A witness for defendants testified that decedent fell while attempting to step from the top of the steps to the running board. During the first trial of the case the defendants' witness' testimony was not put on and the plaintiff's witness' testimony had been discredited. The first trial resulted in a verdict for $15,000. The second trial, during which both of the above witnesses testified, resulted in a verdict of $5,000. It appears that at the time of death the decedent was 62 years of age, was earning $150 per month and was supporting his wife and his thirteen year old daughter. On appeal the plaintiff raised only the question of the inadequacy of the verdict.

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Bluebook (online)
126 So. 2d 759, Counsel Stack Legal Research, https://law.counselstack.com/opinion/goldstein-v-walters-fladistctapp-1961.