IONE G. THIENEMAN AND F. RULEY THIENEMAN, APPELLANTS.
v.
IVERSON CAMERON, JR., APPELLEE

Fla. 3d DCA | 1961-01-26
No. 59-564
HORTON, C. J., and CARROLL, CHAS., J., concur.
126 So. 2d 170 Florida District Court of Appeal, Third District (1961) Caution
Cited by 23 cases

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Synopsis

In this tort action arising from a traffic accident, the trial court awarded $400 to the injured wife but nothing to the husband for loss of consortium and expenses. The appellate court held that the trial judge erred in refusing to grant a new trial on the husband's damages claim, as the evidence clearly supported that he suffered compensable harm.


Holding

The court properly refused to instruct on future damages as there was no evidence of permanent injury to the wife. The verdict amount, though less than the wife's estimate, was within the limits of evidence. However, the trial court erred in refusing a new trial on the husband's damages because the record supported that he suffered damages including medical bills and loss of services.


Key Quotes

“We hold that the trial judge was in error. The record here supports the fact that the husband has suffered some damages, even if only the medical bills are considered. There is also substantial, uncontradicted evidence of loss of services.”

Establishes that the husband had a right to damages despite the jury's initial failure to award them, based on clear evidence of medical bills and loss of services.

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Facts & Procedural History

A traffic accident injured the plaintiff-wife, causing neck and back injuries. The wife sued for personal injuries and the husband joined the action c…

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Opinion of the Court
PEARSON, Judge.

PEARSON, Judge.

This is an action ex delicto arising out of a traffic accident. The plaintiff-wife sued for personal injuries primarily involving her neck and back. Her husband joined in the action by making a claim for loss of consortium and out-of-pocket expense. The" jury awarded $400 to the wife but did not award anything to the husband. The plaintiffs have appealed and have assigned as error: 1) the trial judge’s refusal to give a charge to the jury upon prospective damages; 2) the trial judge’s refusal to grant a new trial for alleged inadequacy of the verdict; 3) the trial judge’s refusal to grant a new trial on the ground that the jury having found liability by an award of damages to the plaintiff-wife must award damages indisputably proved by the plaintiff-husband.

An examination of the record in the light of appellants’ brief demonstrates that there was no evidence of permanent injury to the plaintiff-wife. Therefore the court properly refused to instruct upon the issue of future damages. See Collins v. Godwin, 65 Fla. 283, 61 So. 632.

By appellants’ second point they urge that the verdict is so grossly insufficient that the trial court was required to grant a new trial upon their motion. The amount of the verdict for the wife is decidedly less than the wife’s estimate of her damages, but upon a review of all of the evidence presented, it appears that the jury’s award to the wife is within the limits of the evidence. Cf. Higbee v. Dorigo, Fla.1953, 66 So.2d 684.

The appellants’ third point is directed to the refusal to grant a new trial to the plaintiff-husband because of the failure of the jury to award any damages upon the husband’s claim. We hold that the trial judge was in error. The record here supports the fact that the husband has suffered some damages, . even if only the *172medical bills are considered. There is also substantial, uncontradicted evidence of loss of services. In Loftin v. Anderson, Fla.1953, 66 So.2d 470, where a wife brought an action to recover for personal injuries sustained, and her husband joined in the action, claiming damages for hospital, medical and doctor’s bills, loss of services, consortium and future medical care, the trial court entered a judgment in favor of the wife on a jury verdict, but entered a judgment for the defendant against the husband. The court reversed the judgment against the husband and directed that a new trial be conducted on the question of damages only.1 We have previously held that a verdict upon a wife’s claim necessarily requires a finding of liability to the husband where the evidence is clear that the husband has suffered damages. Noll v. Byorick, Fla.App.1959, 108 So.2d 67. Accordingly, the cause is remanded for a new trial on the issue of the plaintiff-husband’s damages. We conclude that there is no necessity for retrial of the issue of liability. We also determine that it is unnecessary to retry the issue of the wife’s damages, inasmuch as it is clear that the amount of damages awarded to the wife did not include the expenses claimed by the husband. In the Noll case, supra, we held that it was necessary to retry the issue of the wife’s damages along with the issue of the husband’s damages because it was impossible to determine whether certain expenses were included in the wife’s award. Cf. Loftin v. Anderson, supra. As stated above, it is clear in the instant case that the husband’s damages were not included in the jury’s determination of the wife’s award, and therefore we do not find it necessary for the court to retry her damages.

Affirmed in part and reversed in part and remanded.

HORTON, C. J., and CARROLL, CHAS., J., concur.


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Citator

Cited By (12 total)

  • Auto-Owners Ins. Co. v. Tompkins, 651 So. 2d 89 (Fla. 1995)
    …2d DCA 1993); Smey v. Williams, 608 So. 2d 886 (Fla. 5th DCA 1992). Conversely, the third and fourth districts have clearly held that a claimant must prove a permanent injury as a threshold to obtaining future economic damages. Thieneman v. Cameron, 126 So. 2d 170, 171 (Fla. 3d DCA 1961); Fazzolari v. City of West Palm Beach, 608 So. 2d 927 (Fla. 4th DCA 1992), review denied, 620 So. 2d 760 (Fla.1993); Josephson. Our research of the law in other jurisdictions reveals that many other states allow a claimant t…
  • …banks, supra;4 see, Loftin, supra; Klosters Rederi A/S v. Cowden, 447 So. 2d 1017 (Fla. 3d DCA 1984); Kinne v. Burgin, 311 So. 2d 695 (Fla. 3d DCA 1975); Fejer v. Whitehall Laboratories, Inc., 182 So. 2d 438 (Fla. 3d DCA 1966); Thieneman v. Cameron, 126 So. 2d 170 (Fla. 3d DCA 1961); Stroud v. Govreau, 495 S.W. 2d 682 (Mo.1973); Lewis v. Moss, 347 So. 2d 91 (Ala.1977); Morris v. McCauley’s Quality Transmission Service, 60 Cal.App.3d 964, 132 Cal.Rptr. 37 (1976). [*292] Despite having said all this, we do not…
  • Pickel v. Rosen, 214 So. 2d 730 (Fla. 3d DCA 1968)
    …t medical expenses to the plaintiff-father.1 See Noll v. Byorick, Fla. App.1959, 108 So. 2d 67. Cf. Loftin v. Anderson, Fla.1953, 66 So. 2d 470; Fejer v. Whitehall Laboratories, Inc., Fla.App.1966, 182 So. 2d 438; Thieneman v. Cameron, Fla.App.1961, 126 So. 2d 170; Annotation: Verdict Omitting Damages for Pain, 20 A.L.R.2d 276. See also Hatchell v. Hayes, Fla.App.1963, 157 So. 2d 855; Smith v. City of Miami, Fla.App.1963, 153 So. 2d 62. Had the jury returned a verdict for the plaintiff minor for even a small…

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