FLORIDA EAST COAST RAILWAY COMPANY, A CORPORATION, PLAINTIFF IN ERROR,
v.
FRANCIS MELVILLE TOWNSEND, AN INFANT, BY HIS NEXT FRIEND, DUNCAN TOWNSEND, DEFENDANT IN ERROR; FLORIDA EAST COAST RAILWAY COMPANY, A CORPORATION, PLAINTIFF IN ERROR, VS. M. L. GUILFORD, DEFENDANT IN ERROR
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The Florida Supreme Court granted a petition for rehearing in two consolidated railroad injury cases to reconsider whether remittitur (reduction of damages) should be ordered instead of complete reversal and new trial. The cases involve statutory requirements for proper apportionment of damages in appellate reversals.
The Court granted rehearing and stayed the mandate to allow the parties to brief whether a remittitur should be allowed instead of complete reversal. The Court invited counsel to advise what basis exists in the record for allowing remittitur under Section 4640 C.G.L.
“Hereafter an appellate court in reversing a judgment of a lower court brought before it for review by writ of error may, by the order of reversal, if the error for which reversal is sought is such as to require a new trial of the action in the court below, direct that a new trial shall be had on all issues shown by the record or upon a part of such issues only, and when a reversal is had with the direction for a new trial to be had on a part of the issues, all other issues shall be deemed to be settled conclusively in favor of the defendant in error.”
Statutory authority under Section 4640 C.G.L. providing the basis for ordering partial reversals with remittitur as an alternative to complete reversal.
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Join FLexlaw to unlock all legal intelligenceFlorida East Coast Railway Company appealed judgments in two cases: one involving Francis Melville Townsend (an infant) and one involving M. L. Guilfo…
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—-Section 4640 C. G. L., 2921 R. G. S., provides:
“Hereafter an appellate court in reversing a judgment "of a lower court brought before it for review by writ of error may, by the order of reversal, if the error for which reversal is sought is such as to require a new trial of the action in the court below, direct that a new trial shall be had on all issues shown by the record or upon a part of such issues only, and when a reversal is had with the direction for a new trial to be had on a part of the issues, all other issues shall be deemed to be settled conclusively in favor of the defendant in error.”
This Court heretofore reversed the judgments in these cases and remanded them for a new trial on all issues, but held in effect that liability for some damages had been made out on the original trial, but that a proper apportionment of damages had not been shown in accordance with the statute. See Florida East Coast Ry. Co. v. Townsend, 104 Fla. 362, 140 Sou. Rep. 196; Florida East Coast Ry. Co. v. Guilford,. 104 Fla. 370, 140 Sou. Rep. 199.
A petition for rehearing suggests that we should have *373determined a proper amount of remittiturs to be entered in lieu of reversal. It also suggests that unless we do so, defendants in error will be without remedy because the plaintiff in error railroad company is in receivership which will make any judgments for plaintiffs on a new trial fruitless.
Under the circumstances, a rehearing will be granted as to the propositions raised by the petition for rehearing concerning a possible remittitur. Counsel may by briefs advise the Court what, if any, basis exists in the record upon which a remittitur can be allowed in lieu of complete reversal.
Attention of counsel is invited to consideration of the statute above mentioned. Permission to file additional briefs is given both parties, first brief for petitioners for rehearing to be filed within fifteen days and respondents to have fifteen days to reply. In the meantime the mandate is stayed until further order of the Court.
It is so ordered.
Whitfield, P.J., and Terrell and Davis, J.J., concur.
Buford, C.J., and Elias, J., concur in the opinion and judgment.
Brown, J., dissents.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Fla. E. Coast Ry. Co. v. Guilford, 104 Fla. 370 (Fla. 1932)…On Rehearing as to Damages. Per Curiam. —The facts of this case will be found stated in the opinion hereinbefore filed on February 26, 1932, reported in 104 Fla. 362, 140 So'. 196, also in the opinion on rehearing filed July 8, 1932, 104 Fla. 371, 142 So. 909, whereby the question of damages -was ordered reconsidered. For companion ease, see F. E. C. Ry. Co. vs. Townsend, 104 Fla. 370, 140 So. 199, and opinion in the same on rehearing filed this date. In this case Clarence Guilford, a son o…
Authorities Cited
- Fla. E. Coast Ry. Co. v. Townsend, 104 Fla. 362 (Fla. 1932)
- Fla. E. Coast Ry. Co. v. Guilford, 104 Fla. 370 (Fla. 1932)