FRANCISCO DE LA VALLINA, PLAINTIFF IN ERROR,
v.
TERESA CANEDO DE LA VALLENA, A FEME SOLE, FRANK SIERRA AND J. A. LONZANO, DEFENDANTS IN ERROR
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The Florida Supreme Court affirmed a trial court's order granting a new trial unless the plaintiff accepted a remittitur. The appellate court found no abuse of discretion by the trial judge in determining the jury's verdict was excessive.
No, the trial court did not abuse its discretion. The appellate court found that the trial judge's determination of excessiveness was not clearly erroneous and that the suggested remittitur was not patently excessive.
“In requiring the entry of a remittitur to correct an excessive verdict or judgment the general rule seems to be that the amount of the excess must clearly appear from the record, and then if on the whole showing made by the record it appears that the damages awarded by the jury are excessive, the court may require a remittitur for the amount of the excess on condition that the judgment stand for the balance, otherwise a new trial will be granted.”
Establishes the general rule for when a remittitur can be ordered.
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Join FLexlaw to unlock all legal intelligenceAfter a jury awarded the plaintiff $1089.82 in an action on an attachment bond, the trial court ordered a new trial unless the plaintiff agreed to a r…
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Terrell, J.
Subsequent to dissolution of the attachment plaintiff in error brought an action against defendant in error on an attachment bond for the purpose of recovering damages for wrongful attachment. The declaration was in the usual form and the cause went to trial on a traverse of the declaration as provided in Section 2655, Revised General Statutes of Florida. The jury returned a verdict for the plaintiff in error in the sum of one thousand and eighty-nine dollars and eighty-two cents ($1089.82), on which final judgment was entered.
Motion for new trial was seasonably made and submitted, and the trial court entered an order permitting the plaintiff to enter a remittitur for five hundred dollars ($500.00) within thirty days, in default of which a new trial would be granted without further order. Plaintiff declined to enter the remittitur, and took writ of error from this Court to the order granting the new trial. Sec. 2905, Rev. Gen. Stats., 1920.
It is contended by plaintiff in error that the trial court in ordering the remittitur under the facts in this cause clearly usurped the function of the jury, which he cannot do.
In requiring the entry of a remittitur to correct an excessive verdict or judgment the general rule seems to be that the amount of the excess must clearly appear from the record, and then if on the whole showing made by the record it appears that the damages awarded by the jury are excessive, the court may require a remittitur for the amount of the excess on condition that the judgment stand for the balance, otherwise a new trial will be granted. McLean v. Spratt, 20 Fla. 515; Florida Ry. & Nav. Co. v. Webster, 25 Fla. 394, 5.South. Rep. 7l4; Postal Telegraph-Cable Co. v. Scott, 76 Fla. 336, 79 South. Rep. 767; Florida Southern Ry. Co. v. Steen, 45 Fla. 313, 34 South. Rep. 571; Standard Growers’ Exch. v. Martin, 80 Fla. 864, 87 South. Rep. 54; 2 R. C. L. 278.
From a study of the foregoing eases, and many others of similar import, it is .at once apparent that from the face of the record the amount of the excess cannot always be worked out with a mathematical precision, nor do we think the rule contemplates this. It is of course preferable if capable of being determined to mathematical exactness, but may be arrived at through any process of reasoning actuated and controlled by the facts in the record and guided by an honest, sincere purpose to do justice to both parties to the cause in the light of these facts. The line of demarkation between the province of the court and that of the jury in this, as in all other mixed questions of law and fact, is often difficult to distinguish; but when the trial court has in line with the rule here announced authorized a remittitur, his order should not be disturbed unless it clearly appears that he abused his authority or violated a controlling provision or principle of law.
It is contended here that there is no proper predicate in the record for the remittitur, and that in imposing it the trial eoiirt substituted his judgment for that' of the jury. It is well settled that this cannot be done except in eases where it is clear that the jury was influenced by prejudice, bias or other improper influence, but we do not think this rule applies here because the court did not indicate what amount he would have given had he been on the jury, but only such amount as he would not feel at liberty to pronounce excessive. This seems to be the practice in most of the appellate courts, and we think it is warranted to the end of saving vexatious, expensive and prolonged litigation. Florida Ry. & Nav. Co. v. Webster, supra.
Plaintiff in error seeks reversal of an order granting a new trial on condition that the remittitur is not entered. A stronger showing is required to reverse an order allowing a new trial than to reverse one denying it. Ruff v. Georgia S. & F. R. Co. 67 Fla. 224, 64 South. Rep. 782; Aberson v. Atlantic Coast Line R. Co., 68 Fla. 196, 67 South. Rep. 44; Carney v. Stringfellow, 73 Fla. 700, 74 South. Rep. 866.
It is incumbent on plaintiff in error to make it clearly appear that in granting a new trial on condition that the remittitur was not entered, the trial court abused the discretion imposed upon him, and that his award was patently excessive. Careful examination of the record does not disclose such abuse of discretion, or that the suggested remittitur was patently excessive, so the judgment below is affirmed. Pensacola Sanitarium v. Wilkins, 68 Fla. 447, 67 South. Rep. 124.
Affirmed.
Whitfield, P. J., and Buford, J., concur. Brown, C. J., and Ellis and Strum, J. J., concur in the opinion.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (31 total)
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The Wackenhut Corp. v. Canty, 359 So. 2d 430 (Fla. 1978)…of the court.” Though he did not add that it was the jury’s evident passion that shocked his conscience, that was the thrust of it. The Court does not turn this decision on that omission. .The Court’s resurrection of De La Vallina v. De La Vallina, 90 Fla. 905, 107 So. 339 (1926) as authority for the quoted passage is puzzling. That opinion by Mr. Justice Terrell says also that “the excess cannot always be worked out with a mathematical precision, nor do we think the rule contemplates this”; that the exce…1 / 2
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Denis Rety v. Green, 546 So. 2d 410 (Fla. 3d DCA 1989)…t in tthe case, a perfectly proper ground for entering such an order. See Wackenhut Corp. v. Canty, 359 So. 2d 430, 434 (Fla.1978); Lassitter v. International Union of Operating Eng’rs, 349 So. 2d 622, 627 (Fla.1976); De La Vallina v. De La Vallina, 90 Fla. 905, 107 So. 339 (1926); see also Arab Termite & Pest Control of Fla., Inc. v. Jenkins, 409 So. 2d 1039, 1043 (Fla.1982). Indeed, most runaway or haywire jury verdicts on damages suffer from precisely such an infirmity — and it is this classic type of d…
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The Elks Club of Tampa v. Adair, 95 Fla. 415 (Fla. 1928)…order for a new trial. We are mindful of the rule that a stronger showing is required to reverse an order allowing a new trial than to reverse one denying it. County v. Stringfellow, 74 Sou. 866, 73 Fla. 700; De La Vallina v. De La Vallina et al., 90 Fla. 905, 107 Sou. 339. The rule, however, is now well established that the power of the court to permit or require the entry of a remittitur should only be exercised in cases where the amount of excess is apparent or is readily ascertainable. Dodds v. Roane…
Previewing 3 of 31 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Carney v. Stringfellow, 73 Fla. 700 (Fla. 1917)
- Theola Ruff v. Georgia, 67 Fla. 224 (Fla. 1914)
- Fla. Ry. & Navigation Co. v. Webster, 25 Fla. 394 (Fla. 1889)
- Aberson v. Atl. Coast Line R.R. Co., 68 Fla. 196 (Fla. 1914)
- McLean v. Spratt, 20 Fla. 515 (Fla. 1884)
- Postal Tel. Cable Co. v. Scott, 76 Fla. 336 (Fla. 1918)
- Standard Growers' Exch. v. Martin, 80 Fla. 864 (Fla. 1921)
- The Fla. S. R.R. Co. v. Steen, 45 Fla. 313 (Fla. 1903)
- Pensacola Sanitarium v. Wilkins, 68 Fla. 447 (Fla. 1914)