Opinion
June 29, 1951. Rehearing Denied July 10, 1951.
Appeal from the Circuit Court for Volusia County, H.B. Frederick, J.
Walter A. Shelley, Daytona Beach, for appellant.
Horn Ossinsky, Daytona Beach, for appellees.
The appellees, Lillie Mae Humphreys and husband, W.C. Humphreys, obtained in the Circuit Court of Volusia County, Florida, judgments against the City of Daytona Beach, Florida. The verdict and judgment for the wife was the sum of $1,000, while the amount entered below for the husband was the sum of $1,500. It appears by the record that Lillie Mae Humphreys, on October 22, 1947, stepped in a hole about six inches in diameter situated on the edge of the sidewalk and located on the west side of Beach Street between Magnolia Avenue and Volusia Avenue. The theory of the appellees' suit is that the city breached its duty to keep in safe condition the portion of the street, supra, for the use of pedestrians then lawfully upon the street. The injuries sustained by Lillie Mae Humphreys are alleged in Count One of the declaration and attached is a bill of particulars.
The second count of the declaration is by the husband who sought to recover losses for consortium and for money expended by him in behalf of the wife for hospitalization, medicines, nursing, doctors bills, etc., as a result of injuries sustained by the fall when she stepped in the hole in the sidewalk. The issues made by the declaration and several pleas of the defendant were submitted to a jury under appropriate instruction on the part of the trial court. It is contended by the appellant that the judgments so entered are contrary to law and against the weight of the evidence. We have examined the evidence and it is our view that the jury simply settled the disputes and conflicts as testified to by the witnesses for the appellees on the one side and the appellant on the other. This is reflected by the record when a witness for the plaintiffs testified that she advised the city as to the hole in the sidewalk some time prior to the time that Mrs. Humphreys fell.
It is next contended that the judgments should be reversed because they hold the City of Daytona Beach to a degree of care higher than required by law, as in reality the City became an insurer of the safety of the plaintiff. We cannot agree to this contention, as there is in the record testimony to establish the fact of notice on the part of the city of the condition of the street and the hole in the sidewalk at the point in question prior to the time Mrs. Humphreys stepped into it and sustained her injuries. See City of St. Petersburg v. Roach, 148 Fla. 316, 4 So.2d 367.
Two physicians residing at Daytona Beach treating Mrs. Humphreys for her injuries were duly subpoenaed to testify in the cause at DeLand, some 25 miles distant from their offices. These physicians responded to the subpoenas served upon them and were present in court at 9:30 A.M. on October 28, 1949. It is not clear from the record the exact number of hours they were required to be present at the trial. One contention is that they were each required to remain in attendance on the court until the hour of adjournment, while the other is that they were called at 1:00 o'clock P.M. and excused at about 3:00 o'clock P.M. The trial court taxed as costs in the cause for expert witnesses, under the provisions of Chapter 25090, Acts of 1949, F.S.A. § 90.231, the amount of $100 per diem for each of the physicians. It is contended on this appeal, for various reasons, that the order supra is erroneous.
The same question raised on this appeal was considered and ruled upon in our recent case of Tamiami Trail Tours v. Wooten, 47 So.2d 743. We find nothing in the order complained of nor the record which indicates with reasonable certainty the exact time or number of hours consumed by the physicians in attending the trial at DeLand in obedience to subpoenas served upon them. Counsel for the respective parties have conflicting views as to the number of hours required for the physicians to testify and return home. The time element is certainly important under our ruling, supra, and counsel failed to place the facts on the point in the record. The cause comes here with presumption of correctness and the burden is on the appellant to establish error.
Affirmed.
SEBRING, C.J., and THOMAS and ADAMS, JJ., concur.