Morton v. Holaday , 121 Fla. 813 ( 1935 )

Buford, J.

The writ of error under consideration brings for review judgment in favor of the plaintiff in the court below, defendant here, for personal injuries sustained in an automobile collision.

The verdict was for $4,000.00. After order of the court, remittitur was entered for $67.00, so the judgment stood for $3,933.00, plus costs.

A careful consideration of the evidence discloses that the judgment was excessive.

Except for the amount of the verdict and judgment, we would be unable to see any reversible error disclosed by the record, but it does appear from the record that a witness, when testifying in behalf of the plaintiff, stated that at or about the time of the accident the owner of the automobile by which the plaintiff was injured stated that the automobile was insured. This evidence appears to have gone in unsolicited by counsel and, immediately after the witness had given that testimony, the trial judge instructed the jury that they would not consider that testimony as evidence in the case. The verdict indicates', however, that the jury could not forget that an insurance company would be required to pay the judgment.

We think that in view of this condition justice demands that a new trial be had.

The judgment is, therefore, reversed and the cause remanded.

So ordered.

Ellis, P. J., and Terrell, J., concur. Whitfield, C. J., and Brown, J., concur in the opinion and judgment. Davis, J., dissents.