
    SOUTHERN RAILWAY COMPANY, a corporation, Appellant, v. Irma Ruth Kirkland WOOD, as Administratrix of the Estate of James Powell Wood, Deceased, Appellee.
    No. F-402.
    District Court of Appeal of Florida. First District.
    May 18, 1965.
    On Rehearing June 17, 1965.
    Mathews, Osborne & Ehrlich, Jacksonville, for appellant.
    Howell, Kirby, Montgomery & Sands, Jacksonville, for appellee.
   PER CURIAM.

On February 18, 1965, Fla.App., 171 So.2d 614, we relinquished jurisdiction of this cause to the trial court to enable appellant, defendant below, to file there and have disposed of a motion under Rule 1.38(b), Florida Rules of Civil Procedure, 30 F.S.A. Accordingly, the defendant filed a motion under the rule (1 )to vacate the final judgment for plaintiff, (2) to vacate a prior order of the trial court denying defendant’s motion to set aside the verdict and judgment in accordance with its Motion for Directed Verdict and Alternate Motion for New Trial, and (3) to reconsider said prior motions and enter judgment for defendant or grant defendant a new trial. The motion asserts:

“Because of mistake, inadvertence, and surprise, this Court’s attention was not called to the fact that on December 11, 1962, some sixteen months prior to the trial date, sworn answers to the request for admissions denying that the plaintiff’s decedent was an employee of the defendant on the date of his alleged injury were filed with the Court and served upon the plaintiff Irma Ruth Kirkland Wood, as Admin-istratrix of the Estate of James Powell Wood, deceased. Such fact was material to the motions filed, and this defendant respectfully requests this Court to reconsider the Motion to Set Aside Verdict and Judgment in Accordance with Motion for Directed Verdict and to enter judgment for this defendant, or to grant its Motion for New Trial.”

. Upon considering said motion the trial court held that our opinion of February 18, 1965, restricted the trial court to the matter of' receiving said motion and thereupon passing on the sole question of whether defendant’s failure within the period provided by rule 1.30, Florida Rules of Civil Procedure, to verify its initial response to plaintiff-appellee’s request No. 1 for admission, which request was filed November 14, 1962, should be deemed cured nunc pro tunc, having in mind that the defendant on December 11, 1962 (approximately sixteen months before the trial) filed a verified response denying the employment thereby requested to be admitted; and further having in mind that the subject of said employment was specified by the pretrial order as constituting one of the issues to be tried, and that it was not until at an advanced stage of the trial proper that the matter of the failure to verify the original response was brought to the attention of the court. In that particular the court said:

“ * * * it is my construction that regardless of the relief prayed for by the motion of the defendant, I am empowered and I have jurisdiction only to grant relief as to the permission to the defendant to verify nunc pro tunc those responses to admissions. There is no area permitted in the opinion of this Court by the action of the Court of Appeal for the assumption of any further jurisdiction.
“To put [it] in the vernacular, I construe the direction of the Court of Appeal as saying that on a proper motion the Trial Court should permit the defendant to remedy its omission and then toss the ball back to the Court of Appeal to determine whether or not the evidence adduced on the question of employment was sufficient to sustain the verdict.”

When it was suggested by counsel for defendant that rule 1.38(b), F.R.C.P., permits the trial court upon motion and proper grounds to relieve a party of a final judgment, the trial judge said:

“I’m aware of that, but I don’t think the Court of Appeals has empowered us to go that far.”

We were careful by our former opinion to point out that the action of the trial court in visiting upon defendant a conclusive admission of defendant’s employment of the decedent at the time of his injury, due solely to defendant’s failure to answer under oath the mentioned request for admission strictly within the time prescribed by rule 1.30, F.R.C.P., had the effect of restricting the jury’s deliberations exclusively to the issue of negligence. The degree of proof required to establish negligence within the purview of the Federal Employer’s Liability Act is substantially less than that required in actions where the act is inapplicable. Our review of the evidence in this cause touching upon the issue of negligence compels the conclusion that it cannot be said that the jury would have resolved the issue of negligence against the defendant if it had been at liberty to find as a matter of fact that decedent was not in defendant’s employ, nor can we conjecture that had the jury been permitted to resolve the issue of employment and had nevertheless returned its verdict for the plaintiff, that the court would have sustained such verdict in the light of the evidence.

It is obvious, therefore, that on the previous trial the defendant was wrongfully deprived of the right to have the jury resolve the material issue of whether the decedent was in defendant’s employ. In view of the trial court’s disposition of defendant’s motion under rule 1.38(b), F.R.C.P., the judgment appealed must be and it is hereby vacated and this cause is remanded with directions to grant a new trial.

STURGIS, C. J., and WIGGINTON and CARROLL, DONALD K., JJ., concur.

ON PETITION FOR REHEARING

By petition for rehearing appellee suggests that a new trial should not have been granted as to the issue of damages as well as the issue of liability, citing Purvis v. Inter-County Telephone and Telegraph Co., 173 So.2d 679 (Fla. 1965), in support thereof.

In the Purvis case, supra, the plaintiff was granted a summary judgment as to liability and a jury awarded plaintiff $125,-000.00 damages. On appeal, the Florida District Court of Appeal, Second District, held that the trial judge erred in granting the summary judgment on the issue of liability and thereupon reversed the judgment and remanded for a new trial upon both the issues of liability and damages. On certiorari the Florida Supreme Court quashed that part of the decision of the Second District Court of Appeal which remanded the cause for a new trial upon the issue of damages, stating as follows:

“We agree with petitioner that the decision sought to be reviewed conflicts in principle with Larrabee v. Capeletti [Bros., Inc.], supra [Fla.App., 158 So.2d 540]. In the latter case a new trial was granted only on the issue of liability in a personal injury action. The plaintiff there had received a jury verdict of $10,000.00. In that case the court held the issue of liability to be distinct and separable from the issue of damages. In support of this holding the court said:
‘ [4] “ ‘The above procedure is-authorized by Rule 2.8(a) of the Florida Rules of Civil Procedure [31 F.S.A.] which reads as follows: “Jury and Non-Jury Cases. A new trial may be granted to all or any-of the parties and on all or a part of the issues. * * * ” That rule makes no distinction between re-submission of damage question to a new jury following the granting of a new trial and re-submission of the liability question. Indeed, even in the absence of such authorizing rule or statute, the majority rule is that a new trial may be limited to the question of liability when it is clear that the course can be pursued without confusion, inconvenience, or prejudice to the rights of any party. (For a full discussion of the above proposition, see 34 A.L.R.2d 988, and cases cited).’ ” ’
“On the merits, we believe the rule in Larrabee v. Capeletti, supra, should be followed here, since the assignment of error by appellant (respondent here) in the District Court of Appeal only referred to the issue of liability and not to that of damages.”

In the case under review we remanded! the cause for a new trial because the defendant (appellant) was wrongfully deprived of its right to a jury trial on the issue of employment. Appellee’s petition for rehearing cogently insists that the issue of employment affected only the question of liability and had no bearing on the finding of damages made by the jury.

In formerly remanding this cause for a new trial on all issues, we were persuaded and continue to hold that the defendant-appellant was wrongfully deprived of his right to a jury trial on the issue of decedent’s employment. At that time, however, our attention had not been invited to the above-quoted rule in the Purvis case which, as appellee cogently submits, clearly indicates that the issue to be tried on the remand should be limited solely to the unresolved question of employment, upon which liability depends. We agree.

In the case on review, the issues of employment, negligence and damages are separable. The evidence to be adduced upon the issue of employment is obviously immaterial and unrelated to the. evidence heretofore presented on the issue of negligence. The only connection between the issues of employment and negligence is that the former had to be resolved according to the plaintiff-appellee’s contention before the Federal Employers’ Liability Act would be applicable and the employer’s standard of care thereunder capable of determination by the jury.

Appellee also suggests that upon remand of the cause the issue of employment can be presented to a jury with minimum expense and inconvenience to all parties, and that these factors are of substantial importance to appellee who has become obliged to further pursue her claim because of a technical oversight for which she is blameless. These considerations appeal to our sense of justice under the law.

Accordingly, the petition for rehearing is granted and we hereby recede from that part of our opinion filed May 18, 1965, awarding a new trial upon the issue of damages. The cause is remanded with directions to grant a new trial solely on the issue of liability and, in that behalf, to submit the same to the jury on the limited question of fact as to whether the decedent was or was not in the course of employment of the appellant when he sustained the injuries complained of.

It is so ordered.

STURGIS, C. J., and WIGGINTON and CARROLL, DONALD K., JJ., concur.  