DONALD E. CLARK, A MINOR, BY AND THROUGH HIS FATHER AND NEXT FRIEND, DAVID E. CLARK, AND DAVID E. CLARK, INDIVIDUALLY, APPELLANTS,
v.
YELLOW CAB COMPANY OF MIAMI, A FLORIDA CORPORATION, AND BENJAMIN RICHARD ADAMS, APPELLEES
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In this personal injury case arising from an automobile collision, a jury returned a $500 verdict for the father's derivative claim but a zero verdict for the minor plaintiff's direct claim for personal injuries. The appellants challenged the verdict as inconsistent and objected to opposing counsel's closing argument reference to insurance rates. The court affirmed, finding no reversible error.
The zero verdict for the minor is not inconsistent with the father's recovery because the evidence was in conflict as to whether the minor suffered compensable injuries. The counsel's remark about insurance rates, while an improper appeal to passion and prejudice, was not reversible error because the trial court's instruction to disregard it cured the error, and the jury was not shown to have been misled or influenced by the remark.
“The evidence was in conflict as to whether the minor suffered compensable injuries. Therefore, the minor's "zero" verdict is not inconsistent with the father's recovery for medical bills and automobile damage.”
Establishes the court's rationale for finding no inconsistency between the two verdicts based on conflicting evidence regarding the minor's injuries.
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Join FLexlaw to unlock all legal intelligenceDonald E. Clark, a minor, was involved in an automobile collision with the appellee, who admitted liability. The minor claimed injury and sued through…
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Donald E. Clark, a minor, was involved in an automobile collision with the appellee who subsequently admitted liability. The minor, who claimed injury in the accident, sued through his father as next friend, and the father sued individually. The jury returned a five hundred dollar verdict upon the derivative claim of the father, and a “zero” verdict for the minor.
Appellants claim error in two particulars. The first urges that the “zero” verdict is inconsistent with the father’s recovery. A review of the evidence in this cause does not sustain appellants’ position. The evidence was in conflict as to whether the minor suffered compensable injuries. Therefore, the minor’s “zero” verdict is not inconsistent with the father’s recovery for medical bills and automobile damage. Cohen v. Springer Motor Co., Fla.App.1966, 185 So.2d 748; White v. Acker, Fla.App.1963, 155 So.2d 176.
Appellants’ second point alleges an improper remark of appellees’ counsel made in closing argument before the jury. At the end of the argument counsel said, “ * * * if you allow damages for that and make us pay it, then you are asking for it.” We have examined the record and find that this remark; which obviously refers to increased insurance rates as a result of recovery, can be reasonably interpreted as an appeal to passion and prejudice. See: Carls Markets v. Meyer, Fla.1953, 69 So.2d 789; Morton v. Holaday, 121 Fla. 813, 164 So. 514 (1935).
In the instant case the remark was not necessarily reversible error. The appellant *40objected to the remark and asked to have the jury instructed to disregard it; this was done. “The rule is well established in practically all jurisdictions that, when improper evidence is elicited or when improper evidence is volunteered, or when improper conduct on part of attorneys occurs, the charge of the trial court directing the jury to disregard such testimony, or such conduct, cures the error and corrects the irregularity.” Wall v. Little, 102 Fla. 1015, 136 So. 676, 677 (1931). The specific remark was not made a basis for a claim for passion or prejudice in the motion for a new trial.
After considering the evidence m this case, and the verdict of the jury, we are not convinced that the jury was misled or influenced in its verdict by counsel’s reference to increased insurance rates. See: Luster v. Moore, Fla.1955, 78 So.2d 87; Lambert v. Higgins, Fla.1953, 63 So.2d 631.
We have examined the record in light of the other arguments presented and find that reversible error is not present.
Affirmed.
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Pickel v. Rosen, 214 So. 2d 730 (Fla. 3d DCA 1968)…also Loftin v. Wilson, Fla.1953, 67 So. 2d 185. Accordingly, we reverse and remand for a new trial on the sole issue of the damage to the minor plaintiff. . We are not unmindful of our opinion in Clark v. Yellow Cab Company of Miami, Fla.App.1967, 195 So. 2d 39. There, however, the evidence was in conflict as to whether the minor suffered a compensable injury.…
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Royal Odell White, Jr. v. Oswaldo Tomas Martinez, 359 So. 2d 7 (Fla. 3d DCA 1978)…ibuted the pain to her congenital cervical rib. The medical testimony was in substantial conflict, and it cannot be said that the jurors as reasonable men could not have found the verdict they did. Clark v. Yellow Cab Company of Miami, Fla.App.1967, 195 So. 2d 39; cf. Anastasio v. Summersett, Fla.App.1969, 217 So. 2d 854.” Further, the Supreme Court of Florida in City of Miami v. Smith, 165 So. 2d 748, 750 (Fla.1964) said: “. . The District Court concluded it was not reasonable to assume that a verdict for…
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Anastasio v. Summersett, 217 So. 2d 854 (Fla. 4th DCA 1969)…Fla.App.1961, 130 So. 2d 631. . Roberts v. Bushore, Fla.1966, 182 So. 2d 401. . Shaw v. Puleo, Fla.1964, 159 So. 2d 641; Utley v. Southern Metal Products Co., Fla.App.1959, 116 So. 2d 28. . cf. Clark v. Yellow Cab Company of Miami, Fla.App.1967, 195 So. 2d 39; Cohen v. Springer Motor Co., Fla.App.1966, 185 So. 2d 748; White v. Acker, Fla.App.1963, 155 So. 2d 176. . cf. Goldstein v. Walters, Fla.App.1961, 126 So. 2d 759; Andrews v. Cardosa, Fla.App.1957, 97 So. 2d 43. . cf. Hayes v. Hatchell, Fla.1964,…
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Carls Mkts., Inc. v. Meyer, 69 So. 2d 789 (Fla. 1953)
- Luster v. Moore, 78 So. 2d 87 (Fla. 1955)
- Wall v. Little, 102 Fla. 1015 (Fla. 1931)
- Lambert v. Higgins, 63 So. 2d 631 (Fla. 1953)
- White v. Acker, 155 So. 2d 176 (Fla. 1st DCA 1963)
- Morton v. Holaday, 121 Fla. 813 (Fla. 1935)
- Cohen v. Springer Motor Co., Inc., 185 So. 2d 748 (Fla. 3d DCA 1966)
- Super Stations, Inc. v. RAM, Inc., 185 So. 2d 748 (Fla. 3d DCA 1966)