Opinion
June 19, 1951.
Appeal from the Circuit Court, Pinellas County, Victor O. Wehle, J.
Smith, Fant Axtell and Hugh R. Dowling, all of Jacksonville, and Stuart B. Warren, St. Petersburg, for appellant.
Macfarlane, Ferguson, Allison Kelly and Shackleford, Farrior, Shannon Stallings, all of Tampa, for appellees.
Helen Greene Bulmer secured a judgment for personal injuries against appellees in a common law action for $4,000. Her husband, Leonard C. Bulmer, secured a judgment in the same action against the same defendants for loss of consortium and expenses incident to his wife's injury in the sum of $3,000. Mrs. Bulmer has appealed from the judgment in her favor but Mr. Bulmer elected not to appeal. We are also confronted with a cross appeal on the part of defendants.
On the direct appeal the main ground relied on for reversal is the inadequacy of the verdict and judgment.
Appellant relies on Harby v. Florida East Coast Hotel Co., 59 Fla. 280, 52 So. 193; Allen v. Powell, 152 Fla. 443, 12 So.2d 378 and Trice v. Loftin, Fla., 47 So.2d 6, to sustain her contention as to inadequacy of the judgment.
We reversed Allen v. Powell because the jury was confused as to the law governing their duty and being so, we thought the ends of justice required a new trial.
Trice v. Loftin was reversed for a new trial on the ground that the trial court had difficulty in reconciling the verdict of the jury with the justice of the cause as reflected by the weight of the evidence. In the case at bar the trial court stated in his order denying the motion for new trial that if he had been called upon to fix the damages he would have awarded a larger amount, but, said he, the jury had all the facts before them and he could not say that the amount awarded was so inadequate as to be induced by prejudice, passion or some misconception of the law or the evidence. For this reason he declined to disturb the verdict. The trial court had the correct view of the facts and in the face of his holding, we cannot say that the damages awarded were grossly inadequate. It is one of those cases in which the discretion of the jury controls and there is no showing that the verdict rendered was produced by passion or improper motives. The fact that the judge would have awarded a larger amount is not a basis for reversal unless the jury was improperly directed.
The only other question raised on direct appeal has to do with the compensation given expert witnesses. It is contended that they should have been compensated under Sections 90.23 and 90.231 F.S.A. The trial court allowed them two dollars per day as authorized by Section 90.12 F.S.A. I think, under the facts before him, the trial court was correct, so there is no merit to this question.
On the cross appeal the primary question presented challenges the order of the trial court refusing to direct a verdict for cross appellant Webb's City Corporation at the conclusion of the evidence.
The motion for directed verdict in favor of Webb's City Incorporated was predicated on the contention that the injury to Helen Greene Bulmer was caused by the negligent act of the independent contractor who was solely responsible for directing the construction and that cross appellant had no connection with it.
We think the allegations of the declaration and the evidence show that the cross appellants retained control of sufficient details of the work, the protection of the place of business and the contract generally to make it jointly responsible with the contractor. The trial court properly denied the motion for directed verdict in its favor.
Affirmed.
SEBRING, C.J., ROBERTS, J., and PARKS, Associate Justice, concur.