Opinion
August 1, 1950. On Rehearing February 13, 1951.
Appeal from the Circuit Court, Dade County, N. Vernon Hawthorne, J.
Loftin, Anderson, Scott, McCarthy Preston, Robert H. Anderson and William C. Steel, all of Miami, for appellant.
Nichols, Gaither Green and Ray M. Watson, all of Miami, for appellee.
We are confronted in this case with the largest judgment in a personal injury action that has ever been brought to this court. The record and the briefs have been thoroughly examined and present only two questions: (1) Whether or not appellant was responsible for the negligence that caused the injury to appellee. (2) Was the verdict and judgment in favor of appellee in the sum of $260,000 excessive?
Mr. Justice THOMAS, Mr. Justice SEBRING, Mr. Justice HOBSON and Mr. Justice TERRELL are of the view that the question of negligence on the part of appellant was a jury question and that there is ample evidence to support their finding on this point. On the question of damages the views of the Court are at variance. Mr. Justice THOMAS, Mr. Justice SEBRING and Mr. Justice HOBSON are of the view that the ends of justice require that the cause be submitted to another jury to be tried on the question of damages only. Mr. Justice TERRELL is of the view that there is ample basis in the record to dispose of that question at this time, but being without sufficient support for this view, agrees to reversal for a new trial on the question of damages only.
So the cause is reversed for a new trial on the question of damages only.
TERRELL, THOMAS, HOBSON and SEBRING, JJ., concur.
ADAMS, C.J., and ROBERTS and CHAPMAN, JJ., concur specially.
On Rehearing Granted.
We, heretofore, reversed the judgment in favor of the plaintiff and restricted the new trial to damages only. Having now granted a rehearing, Mr. Justice CHAPMAN, Mr. Justice HOBSON and Mr. Justice ROBERTS are of the opinion that a new trial should be granted outright. Mr. Justice ADAMS is of the view that the evidence was insufficient to submit the case to the jury and, therefore, concurs in the conclusion reached to grant a new trial.
Mr. Justice TERRELL, Mr. Justice THOMAS and Mr. Justice SEBRING are of the opinion that we should adhere to our former judgment.
The judgment is, therefore, reversed for a new trial.
So ordered.
SEBRING, C.J., and TERRELL, CHAPMAN, THOMAS, ADAMS, HOBSON and ROBERTS, JJ., concur.
In our opinion there is grave doubt as to liability. Now that the Court has decided that the jury erred on the question of damages, it is not unreasonable to surmise that the jury also erred in the determination of liability. For that reason we are of the opinion that the new trial should be de novo.
Upon a careful reconsideration of this case I am constrained to the view that since this Court, by determining that the jury's verdict of $260,000 is so grossly excessive as to shock the judicial conscience, has actually condemned the jury as having been prejudiced on the question of damages we should not accept the same jury's determination of the questions of liability and of contributory negligence. See Porter v. Gordon, Fla., 46 So.2d 19. These questions are close ones and I do not believe that a jury which obviously was prejudiced upon one issue could with any degree of certainty be said to have been free from prejudice on other vital issues.
If in this case there had been an absence of proof of contributory negligence or if it were patent that the evidence as a whole would not have justified a jury in concluding that it preponderated in favor of the party who asserted contributory negligence and if liability were conceded or clearly apparent from an examination of the transcript of testimony and but little or no doubt existed with reference thereto (as was the case in Renuart Lumber Yards, Inc., v. Levine, Fla., 49 So.2d 97), we should adhere to our original opinion reversing the instant suit for a new trial upon the sole question of damages. But such is not the case and I am of the opinion that this Court can make a fair and impartial trial more nearly certain by reversing this cause for a new trial upon all issues.
CHAPMAN and ROBERTS, JJ., concur.