Heuacker v. Farrelly , 129 Fla. 239 ( 1937 )

Plaintiff in error brought an action against defendants in error Farrelly and Comber, for personal injuries alleged to have been caused by Farrelly's negligent driving of an automobile belonging to Comber, which Farrelly was driving with Comber's knowledge and consent. There was some conflict in the evidence, both as to the questions of negligence of the driver of the car and the ownership of the car by Comber. There was a general verdict in favor of plaintiff in error against both defendants for $5,000.00 damages. Both defendants interposed motions for new trial, and Comber also filed motion for judgment non obstanteveredicto.

The trial judge rendered a judgment non obstante veredicto in favor of Comber, on the ground that the evidence was sufficient to prove several of the pleas interposed by him and in doing so stated that the entry of said judgment made it unnecessary to rule upon Comber's motion for new trial.

As to defendant Farrelly's motion for new trial, the trial court ordered that said motion be granted "unless the plaintiff shall within ten days enter a remittitur in the sum of $2,500.00, whereupon said motion shall stand denied. To this order both the plaintiff and defendant excepted.

The case is now before us on writ of error sued out by the plaintiff in the court below.

The judgment non obstante veredicto in favor of Comber must be reversed upon authority of the recent cases of Dudley v. Harrison McCready Co., 128 Fla. 338, 173 So. 820, and Talley v. McCain,128 Fla. 418, 174 So. 841, and the cause remanded with directions that the lower court proceed to hear and dispose of defendant Comber's motion for new trial just as if the judgment non obstante veredicto had never been entered.

In view of the evidence in this case, we find no error in the trial court's order granting Farrelly a new trial unless plaintiff entered a remittitur of $2,500.00, which order is hereby affirmed.

Reversed and remanded with directions as to defendant in error, R.T. Comber, and affirmed as to order granting defendant in error, H. Farrelly, a new trial unless plaintiff Heuacker entered a remittitur, as provided in said order.

WHITFIELD, TERRELL, BROWN, BUFORD and CHAPMAN, J.J., concur.