Opinion
May 11, 1951.
Appeal from the Circuit Court for Broward County, George W. Tedder, J.
Maurer, Maurer Maurer, Fort Lauderdale, for appellant.
Brown, Dean Hill, Miami, for appellee.
This appeal presents the question: "Where husband and wife sue jointly and the jury is tendered a form of verdict that sets forth each plaintiff individually and leaves a blank for assignment of damages as to each, and the jury, in returning their verdict, enters a sum opposite the plaintiff wife who is first named in said verdict, and places a check mark in the blank opposite the name of the plaintiff husband, which said verdict is accepted by the court and no objections are made to the return of such verdict by the parties, and where the court subsequently denies a motion for a new trial made by the plaintiff husband, should such verdict be affirmed by the appellate court?"
To defend this verdict appellee relies to a great extent upon Fayter v. Shore, 114 Fla. 115, 153 So. 511. We distinguish this case because in that case there was a joint verdict for the husband and wife in the amount of $3700, whereas here the form is several.
Appellee also cites Atlantic Coast Line R. Company v. Price, Fla., 46 So.2d 481. On that point the opinion does state that the verdict insofar as it finds for A.E. Price is mere surplusage and the real intent of the jury is to find for defendant inasmuch as damages were inserted as zero. We are unable, however, to uphold this order upon authority of the Price case because of factual differences. In the Price case the jury entered zeros which showed clearly not to award any sum. The check mark in this case is susceptible of different meanings by reasonable minds. In this case Mr. Nix was not present and he committed no act which could be construed as barring his recovery. Such was not the case in the Price case. The finding here was in favor of the wife as well as the husband which was perfectly consistent. The jury having concluded that Mrs. Nix was free from fault and could recover, hence there existed no impediment to her husband's recovery. The Price case was actually disposed of upon the basic reason that Price's own act caused the injury and the railroad was free of fault.
Much argument is made that Nix made no objection to the form of the verdict until the jury had dispersed, relying upon General Motors Acceptance Corporation v. Judge of Circuit Court, 102 Fla. 924, 136 So. 621, and the Price case. We reject this because the defect in this verdict is one of substance rather than form. There was no fundamental objection to this form of verdict. The finding was plain and unequivocal for Nix. He unquestionably sustained an appreciable amount of damage.
We, therefore, reverse the judgment with directions to grant a new trial upon the question of damages only for in this case we see no reason why the question of liability should be relitigated.
Reversed.
TERRELL, Acting C.J., and THOMAS and CHAPMAN, JJ., concur.