Driscoll v. Morris

• Decision Date: 13 August 1959
• Docket Number: No. 58-556,58-556
• Citation: 114 So.2d 314
• Parties: Francis P. DRISCOLL, Appellant, v. Lillie B. MORRIS and Harry C. Morris, Appellees.
• Court: Florida District Court of Appeals

Page 314

114 So.2d 314

Francis P. DRISCOLL, Appellant, v. Lillie B. MORRIS and Harry C. Morris, Appellees.

No. 58-556.

District Court of Appeal of Florida, Third District.

Aug. 13, 1959.

Rehearing Denied Sept. 15, 1959.

Sams, Anderson, Eaton & Alper, and Phillip Goldman, Miami, for appellant.

Blackwell, Walker & Gray, Miami, for appellees.

HORTON, Chief Judge.

The appellant, plaintiff below, appeals from a judgment in an action for personal injuries entered upon a jury verdict in favor of the appellee-defendants.

The plaintiff was a guest in an automobile which collided with another automobile driven by the defendant Lillie B. Morris and owned by her husband, the defendant Harry C. Morris. The plaintiff did not bring an action against his host but limited his claim to the alleged negligent acts of the defendants.

The plaintiff in this appeal relies upon two alleged errors committed by the trial judge which he contends require a reversal of the judgment. The plaintiff's first ground for reversal is that the trial judge committed harmful error by admitting in evidence, over the plaintiff's objections, a portion of the City of Miami traffic code relating to excessive speed, when there was no evidence that the vehicle in which the plaintiff was a passenger was speeding. The second ground for reversal is that the trial court committed harmful error in refusing to allow rebuttal testimony by the plaintiff in the form of a deposition, which deposition would have refuted the defendant wife's testimony that she had stopped for a stop sign at the intersection. The plaintiff makes no claim that the verdict is not supported by the evidence.

In considering the errors complained of, we will discuss the second one first.

The plaintiff's case-in-chief as to liability consisted of the testimony of the plaintiff, the host driver, and a police officer. The gist of this testimony was that the defendant came out of a side street at a high rate of speed and collided with the automobile in which plaintiff was riding, notwithstanding the fact that the street on which the defendant was operating the vehicle was governed by a stop sign. There was no direct testimony by any of the plaintiff's witnesses that the defendant's automobile had failed to obey the stop sign, although such inference may have been drawn by the jury from testimony relative to a high rate of speed.

After the plaintiff rested his case, both of the defendants testified that their automobile had made a complete stop before entering the intersection. At the conclusion of the defendants' case, the plaintiff attempted to offer in evidence the deposition of one Rose Hough, a resident of Dade County, Florida, who had not theretofore been placed under subpoena as a witness in the cause. The deposition of Rose Hough, as explained by the plaintiff, was offered to show that the defendant did not stop before entering the intersection. The defendant objected to its admission in evidence on two principal grounds, i. e., (1) that the proffered deposition related to matters material to the plaintiff's case-in-chief; and (2) that no showing was made that the deponent could not appear in person as a witness at the trial. Florida Rules of Civil Procedure, 1.21(d)(3) 3, 30 F.S.A. The trial judge, without giving any reasons except that such testimony was a part of the plaintiff's case-in-chief, refused to allow the use of the deposition.

Generally speaking, rebuttal testimony which is offered by the plaintiff is directed to new...