Counts v. Nelson
Counts v. Nelson
Opinion of the Court
This is an appeal from final judgment in a death by wrongful act suit growing out of an automobile accident in which Avery Clarence Counts and Darrell R. Nelson were killed. We find no error and affirm.
The action is brought by appellee, the wife of decedent Nelson, against appellants, Shirley N. Counts, as administratrix ad li-tem of the estates of Avery Clarence Counts, deceased, and Leoman Houston, deceased, (the latter being the record owner of the motor vehicle in which decedents Counts and Nelson were riding at the time of the accident) and their insurance carrier Auto Owners Insurance Company. The case was tried before a jury and at the conclusion of appellee’s case, appellants’ motion for a directed verdict was denied. Upon completion of the case, the jury returned a verdict for appellee apportioning damages between the statutory beneficiaries who were entitled to same. Appellants contend the trial court erred in not granting their motion for directed verdict; that they are entitled to reversal and entry of a judgment as a matter of law in their favor. They also contend that the verdict was excessive.
The evidence viewed in the light most favorable to appellee is as follows: Around noon on Sunday preceding the accident, which occurred between 12:15 a. m. and 3:00 a. m. on the following morning, decedent Counts drove over to the Nelson home in his 1969 Toyota automobile (legal title to which remained in Houston who had sold the vehicle to Counts) and invited decedent Nelson to ride with him to the 7-11 store. Counts drove the vehicle out of the Nelson yard with Nelson sitting in the front seat on the passenger side. This was the last that was seen or heard of them until they were both found dead at the scene of the accident about 3:00 a. m. the next morning.
Two highway patrol troopers who investigated the accident and arrived at the scene not long after it occurred found that the right front of the vehicle had struck a culvert and the car had then traveled 32 feet in the air turning over three-fourths of a turn and coming to rest on the driver’s side. It was extensively damaged and was a total loss. The right front body shield and bumper was driven rearward approximately two feet, and the right suspension was driven rearward approximately one foot. The windshield was popped out and the steering column and instrument panel was crushed by occupant impact. The bodies had not been moved. Counts was down against the driver’s door with his legs between the steering wheel and seat, and Nelson was slumped on top of him as the car laid on the driver’s door. Both had received head and facial injuries and blood covered both. There was no evidence to indicate that any other vehicle was involved in the accident or that the two occupants met their death other than as a result of the impact of the accident.
In addition to the physical position of the bodies and the fact that Counts had gone to Nelson’s home in Counts’ automobile and picked Nelson up on the previous afternoon, other evidence supporting the jury’s finding that Counts was the driver of the car was Mrs. Nelson’s testimony that she never knew of her husband driving anyone else’s vehicle other than his employer’s, and he would not even drive her car when she offered it to him. He only drove his Ford truck and never any other.
Appellants contend that the conclusion that Counts was the driver of the vehicle at
Appellants, in support of their contention that we have only a pyramiding of inferences, rely upon the Supreme Court’s opinion in Voelker v. Combined Insurance Company of America, 73 So.2d 403 (Fla. 1954). Voelker, however, involved construction of the terms of an insurance policy which did not cover injuries in which there was no visible contusion or wound on the exterior of the body of the insured causing death. There Voelker was found outside of his automobile floating in water with no visible bruises or abrasions on his body. In the case sub judice we do not have a parallel situation. Here all of the evidence points to Counts as the driver of the automobile, to the accident as to the cause of Nelson’s death and to negligence of Counts as the direct cause of the accident.
We have considered appellant’s second point and find it to be without merit.
Affirmed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.