Anthony v. Douglas

• Decision Date: 18 August 1967
• Docket Number: No. 260,260
• Citation: 201 So.2d 917
• Parties: Roscoe T. ANTHONY, Jr., Appellant, v. Robert S. DOUGLAS, Appellee.
• Court: Florida District Court of Appeals

Page 917

201 So.2d 917

Roscoe T. ANTHONY, Jr., Appellant, v. Robert S. DOUGLAS, Appellee.

No. 260.

District Court of Appeal of Florida, Fourth District.

Aug. 18, 1967.

Rehearing Denied Sept. 21, 1967.

William H. Pruitt and Wallis E. Schulle, of Fisher, Prior, Pruitt & Schulle, West Palm Beach, for appellant.

Westley W. Silvian, of Burdick & Silvian, West Palm Beach, for appellee.

WALDEN, Chief Judge.

Plaintiff suffered injuries as the result of a vehicular collision. He obtained a summary judgment against the defendant on the issue of liability. After trial upon the issue of damages alone, judgment was entered for plaintiff in the amount of $97,000. Defendant appeals. We reverse.

At the trial, plaintiff testified as to the extent of his injuries. He was cross-examined on this material point concerning his testimony at a prior Workmen's Compensation hearing arising out of the same accident. Later during the trial he admitted misstating his condition at the Workmen's Compensation hearing in that he had indicated a much smaller degree of disability than claimed in the case at bar.

The defendant requested the court to instruct the jury that, if they find any witness to have testified falsely as to any material fact, they may disregard the entire testimony of that witness on the principle that one who testifies falsely about one thing is quite likely to testify falsely about everything. The court denied defendant's requested instruction and substituted its own instruction as follows:

'Should you find a witness has testified falsely, either willfully or intentionally, to some material matter in this case, his or her testimony in other respects may, in your discretion, be disregarded unless it is corroborated to your satisfaction by all of the evidence or by other proof. The rule also applies, but with less force to the statements of a witness which, although not intentionally false, are in fact untrue, especially where they involve matters of judgment and skill. It is not enough that the witness is merely mistaken or that through defective memory he or she departs from the truth.'

Both of these instructions, the one requested and the one given, are derived from the common-law maxim 'falsus in uno, falsus in omnibus.' In its mandatory form such an instruction requires a jury, if they should believe a witness has testified falsely as to any material matter, to disregard his entire testimony. This form has been rejected in Florida. City of Coral Gables v. Blount, 1934, 116 Fla. 356, 156 So. 244 aff'd on reh., 1934, 116 Fla. 361, 157 So. 925) (cert. denied Twin Coach Corp. v. Blount, 1935, 294 U.S. 721, 55 S.Ct. 548, 79 L.Ed. 1253). It never has been in general use and presently is used only in Georgia where it is preserved by statute. 4 A.L.R.2d 1083.

The more common form of 'falsus in uno, falsus in omnibus' instruction is permissive. Generally, the jury is instructed that, should they find any witness has willfully testified falsely as to any material matter, they May disregard all of the testimony of that witness.

Such an instruction seems to add little to the jury's understanding of its role. Certainly a jury, exclusive of such an instruction, is charged with the duty of determining the weight and credibility of the evidence. It has been observed that the rule 'means no more now than that the jury may disbelieve a witness if they think he is lying; but they need no instruction about that * * *' Virginian Ry. Co. v. Armentrout, 4th Cir. 1948, 166 F.2d 400, 4 A.L.R.2d 1064. Therefore, such an instruction is 'at best merely advisory.' Shecil v. United States, 7th Cir. 1915, 226 F. 184.

But if such an instruction does no good, it may cause harm. We find appropriate the following comment in 4 A.L.R.2d 1078, referring to 'falsus in uno, falsus in omnibus' instructions:

'* * * They overemphasize and distort. They offer to the jury a rule or doctrine for the determination of matters best left to judgment and good sense. And they are open to such misconstructions * * * and are so often, as by accidental or seemingly innocent interchange of words * * * so seriously prejudicial, and on the whole constitute such a prolific source of assignments of error * * * as to amount to a deplorable encumbrance on the administration of justice.'

But here we are concerned with the giving of still a third type of 'falsus in uno, falsus in omnibus' instruction. The jury was instructed that they might disregard testimony by a witness who has willfully testified falsely 'unless it is corroborated to your satisfaction by all of the evidence or by other proof.' This form is doubly pernicious. Besides possessing all of the infirmities inherent in the permissive instruction, it...