Bishop v. Watson

• Decision Date: 13 February 1979
• Docket Number: No. 78-740,78-740
• Citation: 367 So.2d 1073
• Parties: Katie C. BISHOP, Mueller Christian Academy, and Preferred Risk Mutual Insurance Company, Appellants, v. Virginia WATSON and Donald Watson, Appellees.
• Court: Florida District Court of Appeals

Page 1073

367 So.2d 1073

Katie C. BISHOP, Mueller Christian Academy, and Preferred Risk Mutual Insurance Company, Appellants, v. Virginia WATSON and Donald Watson, Appellees.

No. 78-740.

District Court of Appeal of Florida, Third District.

Feb. 13, 1979.

Rehearing Denied March 16, 1979.

Ligman, Martin, Shiley & McGee, Coral Gables, Jeanne Heyward, Miami, for appellants.

William Huggett and Theodore M. Kraft, Miami, for appellees.

Before KEHOE and SCHWARTZ, JJ., and CHARLES CARROLL (Ret.), Associate Judge.

PER CURIAM.

This is an appeal by the defendants below from an order granting a new trial. We find error, and reverse.

The appellees, Virginia Watson and Donald Watson, her husband, filed an action against Katie C. Bishop, Hialeah Christian Church, Inc., and Preferred Risk Mutual Insurance Company. The complaint alleged that Virginia Watson (herein referred to as the plaintiff) received permanent injuries caused by negligence of the defendant, Katie C. Bishop, while driving an automobile owned by the defendant church corporation. By a subsequent order entered on stipulation, Mueller Christian Academy was substituted for defendant, Hialeah Christian Church, Inc., as being the owner of the automobile, of which the defendant insurance corporation was alleged to be the indemnity liability insurer. The plaintiff, Donald Watson, sought derivative damages.

The defendant, Katie Bishop, filed a counterclaim against Virginia Watson and against her insurer, Main Insurance Company, joined as a third party counter-defendant. Therein Bishop alleged she received permanent injuries as a result of the negligent driving of an automobile by the plaintiff. The counterclaim was severed for separate subsequent trial, and the cause went to trial on the plaintiff's action.

The accident was a collision of automobiles being driven by the plaintiff and the defendant Katie Bishop. It occurred in a street intersection at which traffic was controlled by traffic lights.

At the trial, each of the drivers testified she had the benefit of a green light. Each had two supporting eyewitnesses. The witnesses who testified that the defendant had the green light were telephone company employees who had been working in the area and whose names as witnesses were obtained by police investigating the accident. The witnesses who testified that the plaintiff had the green light had not given their names to the parties or police at the time of the accident, but appeared in response to a newspaper advertisement seeking witnesses to the accident, which advertisement had been placed more than a year after the occurrence.

As was its prerogative and duty, the jury resolved the conflicts in the evidence. The verdict rendered was in favor of the defendants. The plaintiffs timely filed a motion and supplemental motion for new trial.

The trial court considered two grounds presented in plaintiffs' motions. One, stated in the motion for new trial, was as follows:

"3. The Court erred in failing to allow the Plaintiffs to cross-examine the Defendant, KATIE BISHOP, on the various doctors she had seen and the attention she had received when the subject of her injuries was raised initially by her attorney. The central issue of this case was credibility and this cross-examination goes directly to the credibility of the defendant."

The other ground, stated in the supplemental motion, was the following:

"Defendant's counsel made prejudicial, inflammatory and false statements in final argument. Some of these were objected to and sustained by the Court. The falsity and prejudicial nature of others were stated too quickly to and have become apparent upon hindsight."

In the order granting new trial, the court held the ground relating to cross-examination was without merit. The situation underlying that ground was that when the defendant Katie Bishop appeared at the trial she was walking with the aid of two canes. On direct examination she testified that she had not had any problem in walking prior to the accident. The court precluded the plaintiff from cross examination relating to injuries of the defendant Katie Bishop, and as to her prior medical treatment, ruling such were not material in the plaintiff's action for damages. We hold, as did the trial judge, that the above-mentioned ruling at trial did not constitute legal basis for the granting of a new trial.

Statements of defendants' counsel in final argument which were basis of the other above-quoted ground were as follows:

"Remember, she wants $100,000 so she has got an interest in this case. She doesn't want anything. So, she is here. You remember now, she is looking for $100,000."

"It's a red light case. There's four witnesses to be considered. I don't consider her testimony to be really something that you should consider because she is looking for $100,000.

"But, to make the score even, let's say that Katie Bishop had some interest in this case, but I can't think of, but maybe she does. Let's discount her testimony. We have supposedly four independent witnesses."

From those statements inferences could be drawn that the interest of the defendant Bishop in the outcome of the case was less than that of the plaintiff, thereby implying greater credibility to the former as a witness. Those statements as to difference in interest of parties were not correct, because the defendant Bishop had filed her counterclaim for damages, which fact was not disclosed at the trial.

The trial court was of the view that by reason of those statements of her attorney in final argument, the defendant Katie Bishop gained a personal credibility advantage to an extent that required the granting of a new trial. We cannot agree.

At trial, plaintiffs' counsel made no objection when those statements were made in argument by defendants' counsel; nor did plaintiffs' counsel move the court to instruct the jury to disregard the same. The trial court took no voluntary action with reference thereto. The question of the propriety of the statements or as to inaction of the court, raised first in moving for new trial, came too late. ¹

Upon reading the order granting new trial, it is not clear upon what ground the court granted the new trial. In dealing with the ground of the motion relating to the statements of counsel for defendant in argument, the trial court's order contains the following:

"This error relied upon in the Supplemental Motion for a New Trial is deemed to be without merit by the Court however, it will be relied upon in the hope that if this Order becomes the subject of appellate review, that the appellate court will address itself to the question of the trial judge initiating, without objection on the part of an attorney, such action as is necessary to admonish an offending attorney of improper questions to a witness or improper statements to a jury in closing argument. The Plaintiff in his Memorandum of Law suggests that it was the duty of this trial court to initiate, without objection on the part of counsel, such action when defense counsel's argument was improper on this record. * * *

The contention by the Plaintiff that the Court should have, on its own initiative, admonished counsel for the Defendant with respect to those closing remarks he made to the jury in this case which were improper is rejected although, had objections been made by Plaintiffs' counsel, they would have been sustained in many instances as is related to those portions of argument made by Defendants' counsel which were complained of by the Plaintiff in his...