WALTER L. AUSTRIA, APPELLANT,
v.
GERTRUDE P. DONOVAN, APPELLEE
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Austria appeals a trial court order granting a new trial in an automobile negligence case where the jury awarded appellee Donovan $1,000. The appellate court affirmed, finding the trial judge properly exercised discretion in granting a new trial based on two independent grounds: improper admission of hearsay evidence and an inadequate verdict.
The trial court properly exercised its discretion in granting a new trial. The admission of the Montgomery Ward records was improper because they were made by the custodian from other records and reports of persons not in evidence, lacking sufficient foundation. Additionally, the trial court did not abuse its discretion in finding the jury verdict inadequate and that the jury failed to consider various elements of damages.
“The lower court admitted into evidence the work records of Montgomery Ward, where the plaintiff was working at the time of her injury. The judge concluded that it was improper to have admitted these records under the facts of this particular case. We agree.”
Establishes the appellate court's agreement with the trial judge that the Montgomery Ward records were improperly admitted as hearsay without sufficient foundation.
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Join FLexlaw to unlock all legal intelligencePlaintiff Donovan was injured in an automobile accident and testified she lost her job at Montgomery Ward due to loss of energy from the injury. The t…
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Walter L. Austria, who was the defendant in the lower court, appeals an order granting the plaintiff-appellee a new trial in an automobile negligence case, which had resulted in a jury verdict of $1,000 for the appellee.
The court, in its order, ■ listed six grounds as the basis for granting a new trial. If the lower court was correct on any one of the six grounds given, we would be required to affirm.
Ground (1) of the lower court’s order is:
“The Court erred in permitting the Defendant to introduce into evidence, over Plaintiff’s objection, work records of Montgomery Ward without sufficient predicate and after the witness, the records custodian, admitted that said records were made by her only from other records and reports of *378other persons which were not in evidence.”
The lower court admitted into evidence the work records of Montgomery Ward, where the plaintiff was working at the time of her injury. The judge concluded that it was improper to have admitted these records under the facts of this particular case. We agree.
The plaintiff had testified that due to loss of energy she had slowed down in her work and, in consequence, had lost her job. The work records contained a statement that she was laid off due to lack of work. One of the witnesses for the plaintiff, who was her immediate supervisor in charge of the Invoice Records Department at Montgomery Ward, testified the plaintiff was a willing worker and tried hard but that she could not keep up with her work as she had before, was in constant pain, and on two occasions fainted. The witness who had testified as to the records that were introduced in evidence said that the recommendation that came from tire store manager was in code. She also testified in cross-examination that she had no personal knowledge of the plaintiff’s work, work record, or reason for termination of employment except that which appeared on the personnel record and that the recommendation for lay-off by the store manager was on the basis of an appraisal made by a Mrs. Patterson, -who did not testify in the case, nor did the store manager.
The lower court judge was also of the opinion that the verdict was inadequate and that the jury failed to consider the various elements of damage. The amount of the jury verdict was $1,000 and was apparently less than the medical bills and automobile damage.
We have read the testimony in the case and cannot say that the lower court abused its discretion in granting a new trial because of the apparent failure of the jury to give any damages for pain and suffering, loss of earnings, etc. This matter is within the discretion of the trial judge and! falls within the rule laid down in Cloud v. Fallis, Fla.App.19S8, 107 So.2d 264, cert. discharged, Fla., 110 So.2d 669.
Affirmed.
ALLEN, Acting C. J., WHITE, J., and SMITH, D. C., Associate Judge, concur.
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Citator
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Smith v. Frisch's BIG BOY, Inc., 208 So. 2d 310 (Fla. 2d DCA 1968)…. [*313] In the second place, § 92.36 has to do with the admissibility of business records themselves, not oral testimony with reference to the contents of such records. Yates v. Helms, Fla.App.1963, 154 So. 2d 731; Austria v. Donovan, Fla.App.1964, 169 So. 2d 377. As said by this Court in Exchange National Bank of Tampa v. Hospital and Welfare Board of Hillsborough County, Fla.App.1965, 181 So. 2d 9; § 92.36 is an extension of the Shop Book Rule Statute (F.S. § 92.37 F.S.A.) and is intended to liberalize the…
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Bello v. Angella, 171 So. 2d 547 (Fla. 3d DCA 1965)…he record in its entirety [although we might have had a different view as a trial judge] we do not find sufficient abuse of discretion to warrant a reversal of his order and, therefore, same is hereby affirmed. See: Austria v. Donovan, Fla.App.1964, 169 So. 2d 377. Affirmed.…
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Braddy v. Wahl, 173 So. 2d 172 (Fla. 1st DCA 1965)
Authorities Cited
- Cloud v. Fallis, 110 So. 2d 669 (Fla. 1959)
- Cloud v. Fallis, 107 So. 2d 264 (Fla. 2d DCA 1958)