
    Willis EKHOFF, Appellant, v. Max HOFFMAN, Appellee.
    No. 6963.
    District Court of Appeal of Florida. Second District.
    June 14, 1967.
    Rehearing Denied July 10, 1967.
    
      Norman Bie, Jr., Clearwater, for appellant.
    Hayward H. Davis, Lake Placid, and Richard H. Hyatt, Sebring, for appellee.
   PER CURIAM.

Plaintiff-appellant appeals from an order of the trial court finding the evidence sufficient in the case sub judice to support a verdict for the plaintiff-appellant of $10,-000, but insufficient to support a verdict of $18,000 and granting a new trial unless plaintiff entered a remittitur of $8,000.

The question is whether the trial judge abused his discretion, in the light of the record, in declaring the verdict excessive. See Turner v. Kreider, 1944, 154 Fla. 832, 19 So.2d 408; De La Vallina v. De La Vallina, 1926, 90 Fla. 905, 107 So. 339; and Fla.Jur., New Trials, §§ 90-92.

The rule, often quoted, was stated in De La Vallina v. De La Vallina, 1926, 90 Fla. 905, 107 So. at 339, as follows:

“In requiring the entry of a remittitur to correct an excessive verdict or judgment, the general rule seems-to be that the amount of the excess must clearly appear from the record, and then, if on the whole showing made by the record it appears that the damages awarded by the jury are excessive, the court may require a remittitur for the amount of the excess on condition that the judgment stand for the balance, otherwise a new trial will be granted.”

The trial court in its order requiring re-mittitur stated in part:

“In arriving at the amount of $18,000 the jury would have necessarily have had to indulge in speculation and conjecture as to the plaintiff’s losses suffered as a result of the defendant’s failure to perform. Even though the damages found by the jury were excessive still there was sufficient proof to support a verdict in the amount of $10,000.00.”

We have carefully considered the voluminous testimony contained in the record-on-appeal, in addition to the briefs filed in this cause. The record clearly shows that the jury verdict of $18,000 could have been based only on speculation and conjecture. Since the record does sustain an award of $10,000 the trial judge was correct in requiring a remittitur of $8,000.

Affirmed.

PIERCE, Acting C. J., and HOBSON, J., concur.

PHILLIPS, CHARLES M., Associate Judge, dissents with opinion.

PHILLIPS, CHARLES M., Associate Judge

(dissenting).

My attention remains fixed upon the verbiage from De La Vallina “The amount of the excess must clearly appear from the record.”

It necessarily follows that the figure which the Trial Judge substitutes for the figure found by the jury must meet the same standard by which the Judge tests the amount of -the verdict. I am unable to extract from the record factors which would result in the sum of $10,000 as found by the Trial Judge. When I weigh the Trial Judge’s figure of $10,000 against the rule in De La Vallina, my reaction is the same as was his reaction in comparing the jury verdict with the same rule.

Perhaps the instant circumstnce strengthens the validity of the system whereby the function of finding facts is delegated to a jury exclusively because each successive person who undertakes a calculation is further removed from the facts. Consistent with this principle, I have no successive calculation of my own to offer.  