Albertson v. Stark, 72--866

• Decision Date: 24 May 1974
• Docket Number: No. 72--866,72--866
• Citation: 294 So.2d 698
• Parties: Walter Edward ALBERTSON, Appellant, v. Frances STARK et al., Appellees.
• Court: Florida District Court of Appeals

Page 698

294 So.2d 698

Walter Edward ALBERTSON, Appellant, v. Frances STARK et al., Appellees.

No. 72--866.

District Court of Appeal of Florida, Fourth District.

May 24, 1974.

William H. Roundtree, Cocoa, for appellant.

John G. Rooney of Sands, Smalbein, Eubank, Johnson, Rosier & Bussey, Cocoa, for appellees.

OWEN, Chief Judge.

Appellant's suit for personal injuries arising out of a motor vehicle collision resulted in a jury verdict and judgment for defendant-appellee. We conclude that appellant should have a new trial.

The collision occurred as a result of appellee making a left turn from the road into a school yard at the precise moment that appellant was overtaking and passing to appellee's left. Needless to say, the issue of liability was contested. During defense counsel's argument to the jury, he made the following statement:

'. . . also, if my lady had been charged with a driving violation you better believe you would have heard about it in this courtroom; you haven't heard anything about it, she wasn't charged.'

Appellant's counsel immediately moved the court to strike such argument and to instruct the jury to disregard the same, which motion was granted. No motion for mistrial was made, but appellant did file timely motion for new trial which was denied. ¹

There is no question but that it was improper for defendant's counsel to state to the jury that the defendant had not been charged with a driving violation. Eggers v. Phillips Hardware Company, Fla.1956, 88 So.2d 507; Riedel v. Driscoll, Fla.App.1960, 124 So.2d 42; Walton v. Robert E. Hass Construction Corporation, Fla.App.1972, 259 So.2d 731. Appellees concede this in their brief. But, so they argue, appellant's motion to strike the argument and to instruct the jury was granted, and since appellant did not seek a mistrial, he got all of the relief he requested. There, indeed, is the rub.

The problem here, as in all such cases, is to decide whether the prejudicial harm of such improper comment can be removed or cured by the judge instructing the jury to disregard the same, or whether the improper remarks fall into the classification which has been described as being 'of such character that neither rebuke nor retraction may entirely destroy their sinister influence'. See, Carlton, v. Johns, Fla.App.1967, 194 So.2d 670 and cases therein cited.

Common sense (and experience as well) tells us that to the average juror the decision of the investigating police officer, i.e., whether to charge one driver or the other with a traffic violation based upon the result of his investigation, is very material to, if not wholly dispositive of, that juror's determination of fault on the part of the respective drivers. An examination of the cold record in this case discloses rather clear evidence of appellee's negligence and little, if any, evidence of appellant's contributory negligence. This is not to say that such evidence would not sustain the jury's verdict. It does, however, furnish us a valid basis to conclude that under The facts of this particular case the harmful effect of counsel's improper argument was most likely not cured or removed by the court's instruction to the jury to disregard such argument.

Our decision to grant appellant a new trial is fortified, perhaps, by our impression from the record that the improper argument above quoted was not inadvertent, but was a deliberate tactic calculated to put before the jury by argument that which was totally inadmissible in evidence. It is a lawyer's duty to represent a client zealously within the bounds of the law, but lawyers who elect to engage in trial practice would do well to read Judge Donald Carroll's opinion in Bullock v. Branch, Fla.App.1961, 130 So.2d 74 concerning the lawyer's duty to refrain from injecting into the trial matters which might improperly influence the cold neutrality of the jury. Where any such improper conduct occurs, and the court is satisfied that it was calculated to and did create a prejudicial misapprehension on the part of the jury, the court should not hesitate to set such verdict aside in fulfilling its purpose of securing a fair determination of controversies. Accord, Nicholas v. Rosenthal, 283 App.Div. 9, 126 N.Y.S.2d 34 (1953).

The remaining points raised on appeal do not demonstrate reversible error. The judgment is reversed and this cause remanded with instructions to vacate the verdict and grant appellant a new trial.

Reversed and remanded.

DOWNEY, J., concurs.

MAGER, J., dissents, with opinion.

MAGER, Judge (dissenting):

The majority decision predicates its reversal upon a matter that was never presented to or considered by the trial court, i.e., failure or refusal to grant a mistrial. For that very basic reason I must respectfully dissent.

The majority properly recognizes the impropriety of the statements objected to and...