Andrew BUSBEE, Jr., Appellant,
v.
Robert D. QUARRIER, Jr., Appellee.
District Court of Appeal of Florida. First District.
*18 James E. Hertz, of Fisher & Hepner, Pensacola, for appellant.
Coe & Coe, Pensacola, for appellee.
STURGIS, Chief Judge.
This is аn appeal from a final judgment for plaintiff entered pursuant to verdict of the jury assessing $25,000.00 damages in a negligence action arising out of the alleged unlawful death of plaintiff-appellee's minor son. The judgment is affirmed.
The defendant-appellant contends that the evidence is insufficient to support the verdict in that (1) there was no competent *19 evidence directly or inferentially establishing defendant's liability, and (2) that plaintiff's case depended on circumstantial evidence of such character that the jury could not have returned the verdict it did without pyramiding inference on inference, contrary to accepted principles of law; and that the trial court therefore erred in denying his motion for a directed verdict, made at the close of all the evidence, and/or in denying his post-judgment motion for new trial.
The first count of the complaint charged that plaintiff's son was mortally injured in consequence of defendant's negligent operation of his automobile while intoxicated. The second count charged that plaintiff's son met his death in consequence of the negligent operation of defendant's automobile by some unknown person to whom defendant had entrusted its use. It was incumbent on the plaintiff to affirmatively establish (a) that his son was killed by the negligence of the operator of defendant's car, and (b) that the car was operated by defendant or by someone for whose actions he was responsible. The challenged judgment reaches this court clothed with a presumption of correctness and appellant has the burden of clearly demonstrating reversible error. The facts in evidence and lawful inferences which may be drawn therefrom are to be construed in the light most favorable to the verdict of the jury and judgment entered thereon.
Plaintiff's minor son left his home on his bicycle about 5:00 a.m. to service his paper delivery route. About 25 or 30 minutes later he was found lying beside a public highway with his feet two feet off the highway and his head six feet off, and his bicycle was resting some 23 feet west and further on in the line he was apparently traveling when struck from the rear by defendant's automobile. An automobile radio aerial broken from its stand lay partly under and partly across his body. From dirt on the road it appeared that the point of impact wаs some nine feet in an easterly direction from where he lay. No automobile or other skid marks appeared. He was unconscious and suffering from wounds that in the course of the day proved mortal. Shortly after noon on the day of the accident the defendant phoned the local sheriff's office and advised that his new biege-colored Falcon panel ranch wagon had apparently been in an accident. An immediate investigation revealed that the aerial which lay with the body exactly fitted its broken base on that automobile and dents in the grill of the automobile exactly fitted the rear of a damaged luggage carrier of the bicycle.
Upon being first interrogated on the day of the accident as to where he was the previоus night, defendant stated that he closed his business shortly after midnight and then went to his adjoining trailer home and slept there the rest of the night. At that time he volunteered that he would take care of the bills. When interrogated later that day at the sheriff's office concerning the use of his car, he made the statement, "I can tell you what you want to know"; but at that juncture his attorney arrived on the scenе and he made no further statement. Sixteen months later at the trial he testified that he did not in fact go to bed shortly after midnight on the morning of the accident and explained that if he otherwise informed the investigator, it was because he misunderstood the night to which the investigator was referring when questioning him. He testified that he actually left his business after midnight, after drinking several beers, then went to Riverside Bar, а beer tavern. This tavern is located just west of the Escambia River bridge, which is some 10 or 12 miles east from defendant's home. A witness at that tavern testified that he stayed there until about 2:30 a.m. when that tavern closed. This witness said she saw him later that night at the Coral Club, another beer tavern. Defendant testified that while at the Riverside Bar he had a beer, bought a half-pint of whiskey, and then came home. He testified *20 that prior to going home on this occasion he had been driving his Falcon automobile (the one involved in the accident); that when he arrived home he changed his mind about staying there, parked his Falcon automobile at his home, took an old Buick automobile owned by him and drove to another night spot, known as the Coral Club, where he took one drink and left at 4:30 a.m., driving directly home; that on arriving at his home on this occasion he did not notice whether his new Falcon car remained parked where he left it on the opposite side of a tree under which he parked his Buick automobile; that he then went to bed and was wakened shortly after 10:00 a.m. by some workers who informed him that his Falcon car had suffered damage. He said he found it parked where he had рresumably parked it the first time he returned home.
Several witnesses observed defendant at the night spots. Two of them testified that defendant was drunk. One testified that he met defendant on the road outside the second tavern visited by defendant; that at that time defendant was driving a light panel truck; that he suggested to defendant that defendant park this car, which he did; that the witness then took him into the tavern аnd that defendant departed therefrom with the crowd just before 5:00 a.m. when the band stopped playing and everybody had to go home. Another witness, who did not know the defendant, saw a biege Falcon panel truck, with one occupant, leave that tavern about that time.
Another witness, a taxicab night dispatcher, drove by the scene of the accident a few minutes after 5:00 a.m. and saw a paper boy on his bicycle and also saw a small light-colored compact automobile, answering the general description of defendant's Falcon, approaching at fast speed from around a curve some distance ahead and apparently finding difficulty in staying on the road. The identity of the Falcon automobile owned by defendant as the death-dealing instrumentality was established beyond reasonable doubt by the testimony of expert witness James Halligan, Supervisor in charge of the Crime Laboratory Section of the Florida Sheriffs Bureau.
We have detailed the foregoing facts favorable to the jury verdict in order to demonstrate that the verdict of the jury herein is consistent with the hereinafter discussed rules of evidence. As in the triаl of any case depending on issues of fact, the evidence in this case is subject to various shades and nuances of interpretation, but under our system of jurisprudence it is the exclusive province of the jury to resolve the same.
There is ample evidence herein to support the jury's conclusion that the driver of defendant's Falcon was guilty of negligence proximately causing the boy's death. In Orme v. Burr,
"There must be reasonable evidence of negligence. But where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care." Scott v. The London & St. Katherine Docks Co., 2 H. & O., 596.
"In our opinion, rеs ipsa loquitur means that the facts of the occurrence warrant the inference of negligence, not that they compel such an inference; that they furnish circumstantial evidence of negligence where direct evidence of it may be lacking, but it is *21 evidence to be weighed, not necessarily to be accepted as sufficient; that they call for explanatiоn or rebuttal, not necessarily that they require it; that they make a case to be decided by the jury, not that they forestall the verdict. Res ipsa loquitur, where it applies, does not convert the defendant's general issue into an affirmative defense. When all the evidence is in, the question for the jury is whether the preponderance is with the plaintiff." Sweeney v. Erving,228 U.S. 233 ,33 S.Ct. 416 , 418,57 L.Ed. 815 , Ann.Cas. 1914D, 905.
In St. Petersburg Coca-Cola Bottling Co. v. Cuccinello,
"Without the benefit of the rule of res ipsa loquitur, the physical facts testified to are sufficient, when coupled with admissions of the truck driver in court and to the witness Applefield (if he is believed) from which it could reasonably be deducted that the child was in the driveway ahead of the truck, * * *."
It is well established in this jurisdiction that when circumstantial evidence is relied on in a civil case, the particular inference relied on to establish the fact must outweigh all contrary inferenсes to such an extent as to amount to a preponderance of all reasonable inferences that might be drawn from the same circumstances. That rule necessarily contemplates the existence of evidence from which contrary though equally reasonable inferences might be drawn; that the state of the evidence is such as to preclude entry of a directed verdict. Budgen v. Brady,
This jurisdiction is committed to the rule that in the limited field of rearend collisions, and where the leading vehicle is located within its proper place on the highway, proof of an accident such as is here involved raises a presumption of negligence on the part of the overtaking vehicle. Rianhard v. Rice,
*22 Applying what we have said to the evidence adduced in this case, it is abundantly clear that the jury was entitled to conclude that defendant's automobile alone was the overtaking vehicle involved in the accident, and that in so concluding it was not necessary to build inference upon inference. The evidence was also sufficient to support a finding of negligence on the part of the operator who apparently did not stop or otherwise show any normal reaction after striking the deceased, for these acts suggest lack of control of faculties or a degree of callousness of which no sober person would be guilty.
A person driving an automobile does not ordinarily run down bicyclists or pedestrians on the highway, and if he does, hе takes some notice of it, even if he ultimately decides on flight or falsehood to protect himself. If he decides on flight, it calls into operation the presumption of conscious guilt, commonly inferred therefrom in criminal cases and properly to be considered in civil cases. If he decides on falsehood, the doctrine stated by Wigmore on Evidence, Vol. 2 (3rd ed.), Seсtion 278, page 120, applies:
"* * * it has always been understood the inference, indeed, is one of the simplest in human experience that a party's falsehood or other fraud in the preparation and presentation of his cause, his fabrication or suppression of evidence by bribery or spoliation, and all similar conduct, is receivable against him as an indication of his consciousness that his case is a weak or unfounded one; and from that consciousness may be inferred the fact itself of the cause's lack of truth and merit [emphasis added]."
Section 317.852, Florida Statutes, F.S.A., requires high-beam headlights to show objects 350 feet ahead and low-beam to show objects 100 feet ahead. As suggested by the Florida Supreme Court in Orme v. Burr, supra, accidents such as that which occurred in the instant case do not hаppen when due care is observed. Negligence has been visited upon one whose headlights were required to show 300 feet and who in driving an automobile at night ran over a prone figure on the highway. Kriesak v. Crowe, D.C.,
The only other issue on this appeal is whether the jury was entitled to conclude from the evidence that the automobile was operated by the defendant or by sоme other person with his knowledge and consent. On this issue of fact, the jury had before it the positive testimony of several witnesses identifying the defendant as having been the driver of his Falcon automobile on the night of the accident. Opposed thereto is the testimony of the defendant to the effect that he changed cars about 3:00 a.m., leaving his Falcon at his residence and driving off in his Buick, and that thereafter some person unknown to him took the Falcon away from his home and after the accident returned it without his knowledge. This left a question of fact exclusively for the jury to resolve and did not require the building of inference on inference in order to reach a conclusion.
The word "inference" has a twofold use: first, to describe a conclusion which the law drаws without direct proof from an admitted antecedent fact; and second, the factual conclusion that a jury may draw from sufficient circumstantial evidence. A striking example of the former is the statutory inference by which the owner is held responsible for operation of a motor vehicle if his ownership thereof and identity of the driver be shown. Another example of the first use is thе inference that one who breaks and enters a building wherein is a stock of goods intends to steal from the stock. The second use of the word, as above stated, is to describe the factual conclusion which a trier of fact is entitled to draw from sufficient circumstantial evidence, e.g., the origin of the fire as inferred in Shepherd v. Finer Foods, Inc., *23
The doctrine prohibiting inference on inference to arrive at a conclusion that is not supported by other direct proof of an admitted or established antecedent fact derives from the opinion of Judge West in Gustine v. State,
In the case of Commercial Credit Corporation v. Varn,
"Circumstantial evidence certainly may be relied upon as a basis for recovery in civil actions. Tucker Brothers, Inc. v. Menard, Fla. 1956,90 So.2d 908 . The rule is clear, however, that the inference of the existence of an essential fact to be drawn from circumstantial evidence cannot be made the basis of a further inference of an еssential fact, unless it can be said that the initial inference was established to the exclusion of any other reasonable inference."
* * * * * *
"In civil cases if the proved circumstances justify an inference pointing to an essential fact which inference outweighs all reasonable inferences to the contrary, it can then be said that a conclusion as to the existenсe of the ultimate fact is justified by the circumstantial evidence. Tucker Brothers, Inc. v. Menard, supra. However, the established rule of evidence is that we cannot construct a conclusion upon an inference which has been superimposed upon an initial inference supported by circumstantial evidence unless the initial inference can be elevated to thе dignity of an established fact because of the presence of no reasonable inference to the contrary. Voelker v. Combined Ins. Co. of America, Fla. 1954,73 So.2d 403 . See also Wigmore on Evidence, Vol. 1, Sec. 41."
The conclusion reached in that case rested on the fact that the trial court erroneously permitted the jury to draw the inference of a negligently-kept floor from the fact that plaintiff slipped and fell thereon, and then, without further evidence of causal connection, permitted the jury to infer that her fall was not due to her own stumble but because of the negligently-kept floor, i.e., "A" proves "B" and "B" proves "A". In that case we particularly noted the absence of circumstances which might have induced the conclusion that the floor was negligently kept, such as wax that was found on her shoe, a skid mark on the wax said to be on the floor, or that there was an accumulation of wax thereon at the time of her fall.
Finding no error, the judgment appealed is
Affirmed.
WIGGINTON and CARROLL, DONALD K., JJ., concur.