Remsberg v. Mosley

58 So. 2d 432, 1952 Fla. LEXIS 1156

Opinion

58 So.2d 432 (1952)

REMSBERG
v.
MOSLEY.

Supreme Court of Florida, en Banc.

April 25, 1952.

C.L. Chancey, Fort Lauderdale, for appellant.

Galatis & Kirsch, Fort Lauderdale, for appellee.

TERRELL, Justice.

This appeal is from an order of the Circuit Court granting a new trial in a personal injury action limited to the question of damages only.

In Porter v. Gordon, Fla., 46 So.2d 19, we pointed out the reasons why a circuit court was without power to grant such motion. In the last cited case we affirmed the order granting the new trial but required the case to be tried de novo on the issues presented in the cause, reason for this being, that it did not clearly appear that the question of damages was entirely separate and distinct from other issues, and that a new trial could be had without the danger of confusing damages with other issues. A new trial on the question of damages only should not be granted unless liability on the part of defendant is clearly shown and it is not deemed necessary for any reason to try that issue again.

In the case at bar we are confronted only with the record proper. The evidence was not brought up. The pleadings reveal issues that are so related to the question of damages that we think the new trial should be on the merits, both as to liability and the amount of damages.

The judgment is therefore reversed on authority of Porter v. Gordon last cited.

It is so ordered.

SEBRING, C.J., and CHAPMAN, THOMAS, HOBSON and ROBERTS, JJ., concur.

MATHEWS, J., not participating.