Ahearn v. Florida Power & Light Co.
| Decision Date | 10 July 1959 |
| Docket Number | No. 623,623 |
| Citation | 113 So.2d 751 |
| Parties | Rita S. AHEARN, a widow, Appellant, v. FLORIDA POWER AND LIGHT COMPANY, a corporation, Appellee. |
| Court | Florida District Court of Appeals |
Fowler, White, Gillen, Yancey & Humkey, Tampa, and Berryhill, Leaird & Tedder, Fort Lauderdale, for appellant.
Fleming, O'Bryan & Fleming, Fort Lauderdale, for appellee.
In the trial court, appellant as the plaintiff sought to recover compensatory damages from the appellee, the defendant, charging wrongful death of her husband by electrocution. The parties will be designated here as they were in the court below. At the close of the plaintiff's case in chief, the trial judge granted defendant's motion for a directed verdict, holding as a matter of law that the deceased husband of plaintiff had been guilty of contributory negligence. The appeal reaches this court from the final judgment entered, predicated upon the directed verdict.
During the trial the plaintiff put on twelve witnesses, while the defendant, during the course of plaintiff's case in chief, put on out of turn three of those same witnesses to testify in its behalf. A defense interposed and relied on by the defendant was that of contributory negligence, an affirmative defense requiring proof by a preponderance of the evidence. The substance of the testimony need not be recounted; examination of the record reveals that the testimony of these witnesses of the defendant was adverse to the plaintiff's case on this case. To reiterate, the trial court's direction of the verdict for the defendant was grounded upon the proposition that the deceased husband had been guilty of contributory negligence as a matter of law.
The plaintiff has questioned the propriety of the trial court's action in directing a verdict for the defendant at the time it did since three witnesses were put on out of turn and testified for the defendant during the presentation of plaintiff's case in chief. Plaintiff insists that the trial judge should not have considered the unfavorable testimony of these defense witnesses because the direction of the verdict in such situation deprived her of her right of rebuttal.
A trial judge is empowered to direct a verdict in a civil case under specified conditions. The portion of the applicable law, section 54.17, Florida Statutes, F.S.A., enabling him so to do, reads:
'If, however, after all the evidence shall have been submitted on behalf of the plaintiff in any civil case, it be apparent to the judge that no evidence has been submitted upon which the jury could lawfully find a verdict for the plaintiff in such civil case, the judge shall, upon motion of the defendant, direct the jury to find a verdict for the defendant; and if, after all the evidence of the parties shall have been submitted, it be apparent to the judge that no sufficient evidence has been submitted upon which the jury could legally find a verdict for one party, the judge may direct the jury to find a verdict for the opposite party.'
It thus appears there are two stages in a trial of a civil case when a judge may direct a verdict: (1) after all the plaintiff's evidence has been submitted, and (2) after all the evidence of both sides has been submitted. In the first stage, the directed verdict may only be for the defendant; and in the second stage, the verdict may be for either of the parties. As to the first stage, the language of the statute is clear, requiring that for a defendant's motion for a directed verdict to be granted, it must be founded upon all the evidence submitted on behalf of the plaintiff.
Although not identical in its procedural aspects, the case of Atlantic Coast Line R. Co. v. Ward, 1926, 92 Fla. 526, 109 So. 452, is analogous in principle to the present case. There, the Supreme Court applied a provision from a statute then in force and designated as Chapter 9364, Acts of 1923, amendatory...
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Godbee v. Dimick
...a right to attempt to rebut it and present evidence that the brain injury was not the cause of death. See Ahearn v. Florida Power and Light Company, 113 So.2d 751 (Fla. 2d DCA 1959), quashed on other grounds, 118 So.2d 21 (Fla.1960). We have reviewed Rhodes v. Asplundh Tree Expert Co., 528 ......
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Ahearn v. Florida Power & Light Co., 623
...decision and remanded the cause to this court for adjudication of the plaintiff's remaining two points. See Ahearn v. Florida Power & Light Company, Fla.App.1959, 113 So.2d 751; and Florida Power & Light Company v. Ahearn, Fla.1960, 118 So.2d Points two and three of plaintiff's appeal asser......
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Florida Power & Light Co. v. Hercules Concrete Pile Co.
...T. Ahearn, against FPL. After the case had literally bounced throughout the judicial system of Florida, (See Ahearn v. Florida Power & Light Co., 113 So.2d 751 (Fla.App.1959); Florida Power & Light Co., v. Ahearn, 118 So.2d 21 (Fla. 1960); Ahearn v. Florida Power & Light Co., 129 So.2d 457 ......
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Hartstone Concrete Products Co. v. Ivancevich, 7255
...vehicle. A party has never been required to give advance notice that he intends to use impeachment evidence. Ahearn v. Florida Power and Light Co., 113 So.2d 751 (2d DCA Fla.1959), rev'd other grounds 118 So.2d 21; Collier v. McKesson, 121 So.2d 673 (3d DCA Fla.1960). Litigants have never b......