380 F.2d 489 | 5th Cir. | 1967
Rehearing
OPINION ON MOTION FOR REHEARING.
Upon reconsideration the opinion originally rendered by the Court in this cause is hereby withdrawn, and it is ordered that the following opinion be entered:
This is an appeal from a judgment of the district court following a jury trial on the issue of damages only in an action brought by appellee for the wrongful death of his minor daughter resulting from an automobile accident in the City of Pensacola, Florida. The court had granted appellee’s motion for summary judgment on the issue of appellant’s liability based upon a deposition of the appellant together with affidavits of the appellee and the driver of the automobile in which appellee’s minor daughter had been a passenger at the time of the accident.
The record forming the basis for the trial court’s rendition of the summary judgment reveals the following undisputed facts. On the afternoon of November 22, 1963, appellant was proceeding north on Fourteenth Avenue through a residential area in the City of Pensacola,
On this appeal, appellants urge two grounds for reversal: First, that the trial court erred in entering summary judgment on the issue of appellant’s liability ; and secondly, that the court erred in instructing the jury to include an amount for funeral expenses in the damages verdict. We conclude that under applicable Florida law the court correctly granted the motion for summary judgment but erred in allowing the recovery of funeral expenses.
I.
Rule 56(c) of the Federal Rules provides that the trial court shall enter a motion for summary judgment only if the pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any, reveal that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Moreover, as a general proposition, issues of negligence, the resolution of which requires application of the reasonable-man standard to all the facts, are not ordinarily susceptible to summary adjudication. E. g., St. John v. New Amsterdam Cas. Co., 5th Cir. 1966, 357 F.2d 327, 328; Gauck v. Meleski, 5th Cir. 1965, 346 F.2d 433, 437; Stace v. Watson, 5th Cir. 1963, 316 F.2d 715, 716. See generally Federal Practice & Procedure § 1232.1 (Wright ed. 1958); Moore, Federal Practice 1156.17 [42]. Even where the facts bearing upon the issue of negligence are undisputed, as in the instant case, if reasonable minds could reach different conclusions and inferences from such facts, the issue must be submitted to the trier of fact. Looking to state law, the courts of Florida have ruled that the violation of a traffic law is not negligence per se but mere
II.
Appellant’s second specification of error is that the trial court improperly directed the jury to include an amount for funeral expenses in its determination of the damages issue. Although Florida law was uncertain on the question of recovery of funeral expenses at the date this case was presented for oral argument, the Florida Supreme Court, in a recent opinion, has clarified the law in this area. In Sinclair Refining Co. v. Butler, Fla.1966, 190 So.2d 313, 319-320, the court, rejecting previous decisions to the contrary, declared that:
(1) Funeral expenses cannot be recovered in an action brought under the Wrongful Death Act, § 768.01 and § 768.02 [Fla.Stat.Ann.] by a surviving spouse, child or dependent.
(2) A personal representative can recover for funeral expenses in a survival action brought under § 45.11, Fla.Stat., F.S.A.
(3) * * * Furthermore, the power is inherent in an administrator to sue for recovery of funeral expenses, since he is legally bound to pay them from estate funds.
In conformity with this recent pronouncement of the Florida Supreme Court, we are compelled to rule that since appellee failed to seek recovery of funeral expenses as a personal representative under the Florida survival statute or as an administrator of the deceased’s estate, but rather elected to base his claim for such damages on the provisions of the Wrongful Death Act, Fla.Stat.Ann. §§ 768.01-.03, the trial court erred in instructing the jury to include the funeral expenses as an element of damages. The court, however, recognizing the uncertainty of state law with regard to this issue, ordered that the amount for funeral expenses be specifically designated as a separate item of damages in the verdict. This being the case, that amount can be eliminated pursuant to our decision without upsetting the remainder of the verdict.
Accordingly, with the exception of that portion of the judgment awarding funeral expenses to appellee, which is reversed, the judgment of the trial court is hereby affirmed, all costs of appeal to be taxed against appellee.
. A review of the Florida decisions in this area indicates that the state courts have viewed the language “prima facie evidence of negligence” as giving rise to a mandatory rather than permissive presumption of negligence. See McCormick, Evidence § 308 (1954). Accordingly, proof that a traffic law has been violated is not only sufficient to take the negligence issue to the jury but further places the jury under an affirmative duty to return a verdict of negligence in the absence of introduction of sufficient evidence by the violator to rebut such presumption. Failure of the violator to come forward with evidenco sufficient to overcome such “prima facie” negligence subjects him to the risk of an adverse peremptory ruling. See Parker v. Hofheinz, infra, and cases discussed therein. If, on the other hand, the “prima facie evidence of negligence” created by proof of a traffic law violation were viewed as merely a permissive presumption, which the jury could freely accept or reject even in the absence of any rebuttal evidence, every case involving a statutory violation would necessarily require jury submission for the courts would be powerless to direct a verdict or enter a summary judgment.
Dissenting Opinion
(dissenting):
In my opinion the entry of summary judgment for the plaintiff denied to the defendants their constitutional right to a trial by jury. In the federal courts that right is to be determined as a matter of federal law in diversity as well as other
Mrs. Marsden had never before driven in the area where the collision occurred. She simply failed to see the stop sign. So far as the affidavits disclose, one sign constituted the sole warning. There was nothing else to warn a motorist of the necessity of stopping, such as approach warnings of a stop ahead or apparent differences of width or use of the streets. Mrs. Marsden had driven on Fourteenth Street without stopping for several blocks before getting to the intersection. Boni-fay, the driver of the car on Blount Street, had stopped at a four-way stop sign just two blocks before the collision. Mrs. Marsden was approaching from Bonifay’s right and, not seeing the stop sign, she assumed until too late that she had the right of way. She testified that “I had been watching, since there was one car directly in front of me and since it appeared to know exactly where it was going.” That car proceeded through the intersection without stopping, and Mrs. Marsden attempted to continue following it. When the stop sign had been erected and whether it was generally observed does not appear. Under all of the circumstances, Mrs. Marsden’s simple failure to see the stop sign does not, I submit, present such a conclusive or compelling inference of negligence as that no reasonable man could find to the contrary.
I doubt also whether there was any competent evidence that the collision caused the death. There was no medical evidence. Mr. Patane’s affidavit stated that his daughter “ * * * died November 22, 1963, from injuries received by her in an automobile collision November 20, 1963 * * The only evidence as to the severity of his daughter’s injury is contained in Bonifay’s affidavit that she “was thrown from the car and seriously injured and later died.” The affidavits are not competent evidence of opinion testimony that would not be admissible if testified to at the trial. Rule 56(e), Fed.R.Civ.P.; 6 Moores Federal Practice § 56.22 [1], p. 2808, n. 24. I think that the case was for the jury and, therefore, respectfully dissent.