ROBERT P. STORES, APPELLANT,
v.
AMOS B. HUSSEY, APPELLEE
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In this automobile collision case, the appellate court affirmed the jury's liability finding against the appellant but reversed and remanded for a new trial on damages, finding that the trial court erred in admitting mortality tables and instructing the jury on permanent injury damages when the evidence supported only speculative possibility of future injury.
The trial court erred in admitting mortality tables and instructing the jury on permanent injury damages because the evidence supported only a speculative possibility, not a reasonable certainty, of permanent injury. The evidence did not justify a finding that the injury was permanent in nature or that pain and suffering would continue indefinitely. The liability finding is affirmed but the damages award is reversed for a new trial on damages only.
“the record does not contain evidence which would justify the jury in finding that it was "reasonably certain" that such injury was in any wise permanent in nature, or that it would become aggravated, or that pain and suffering would continue indefinitely”
Establishes the standard requiring reasonable certainty of permanent injury, not mere speculation, to warrant damages instructions
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Join FLexlaw to unlock all legal intelligenceAn automobile collision resulted in injury to the appellee. The appellee testified he was conscious of pain at the injured joint at the time of trial.…
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Judgment was rendered against the appellant in an action arising out of a collision in which his automobile was involved. The sufficiency of the evidence to support the verdict upon which the judgment was based is assigned as error. The evidence in respect to liability was conflicting, and was resolved by the jury against the appellant. There is no lack of evidence as to any essential element of the cause of action which would justify us in substituting our judgment for that of the jury.
Error is also assigned challenging the verdict upon the ground that the award was so disproportionately large as to shock the conscience and to indicate that the jury was influenced by matters outside the evidence. Since we reverse the case for a new trial as to damages alone upon other grounds, we express no opinion as to the merits of this contention.
In giving instructions to the jury as to the measure of damages, the Court, over the objections of counsel for appellant, included in such instructions the customary rule for their guidance in the event the jury should determine that appellee had suffered injuries permanent in nature. During the taking of the evidence, also over objection, the Court permitted the introduction of mortality tables.
Appellant urges here, as he did in the Court below, that there was no predicate in the evidence to warrant the instructions, or to allow the mortality tables in evidence, since there was no medical or other evidence which would raise a reasonable probability that permanent injury existed or would ensue. With these contentions we are compelled to agree.
It will serve no useful purpose to relate in detail the evidence relating to the probability of future aggravation of the injury and of consequent continued pain and suffering. What evidence there was indicated only a speculative possibility that rheumatism or arthritis might develop in the left knee.
We have not overlooked the testimony of appellee that at the time of trial, he was conscious of pain at the injured joint, and that the jury might properly have inferred that such pain might continue for some limited time in the future, but we are convinced that the record does not contain evidence which would justify the jury in finding that it was “reasonably certain” that such injury was in any wise permanent in nature, or that it would become aggravated, or that pain and suffering would continue indefinitely.
For the error in admission of the mortality tables in evidence, and the giving by the Court of instructions as to the measure of damages for injuries permanent in nature, the cause is reversed and remanded for a new trial on the issue of damages only. It is affirmed on the issue of liability.
STURGIS, C. J., and WIGGINTON, ]., concur.
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Schwab v. Tolley, 345 So. 2d 747 (Fla. 4th DCA 1977)…e creation of the situation in which the problems of apportionment arose. Washewich v. LeFave, 248 So. 2d 670 at 673 (Fla. 4th DCA 1971). The cases cited by defendants — Fuller, supra; Baggett v. Davis, 169 So. 372 (Fla.1936); and Stores v. Hussey, 100 So. 2d 649 (Fla. 1st DCA 1958) — deal with the necessity of showing that future damage will occur with reasonable certainty. They do not deal with the apportionment between an original condition and its aggravation where the damage is certain — which is the ca…
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Westbrook v. Bacskai, 103 So. 2d 241 (Fla. 3d DCA 1958)…intiff, claiming permanent injury, to offer evidence sufficient to raise a reasonable probability that permanent injury exists as a proximate result of the accident which is the subject of the action before the court. Stores v. Hussey, Fla.App.1959, 100 So. 2d 649; cf. William Penn Hotel v. Cohen, Fla.App.1958, 101 So. 2d 404. In the instant case we have successive injuries and there was no evidence upon which a jury of reasonable men could have assigned permanent injury to the last accident. Before liabilit…
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Corbett v. Dade Cnty. Bd. OF Pub. Instruction, 372 So. 2d 971 (Fla. 3d DCA 1979)…r the future damages instruction which the court now says should have been given. Indeed, to have given such a charge would have been reversible error in itself. Seaboard Airline Railroad Co. v. Ford, 92 So. 2d 160, 163 (Fla.1956); Stores v. Hussey, 100 So. 2d 649 (Fla. 1st DCA 1958). I am, therefore, unwilling to stretch, as the court does, the fundamental principles of appellate review in' order to reverse the trial court for failing to give a jury instruction requested by no one when it is doubtful, to sa…
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