City of Coral Gables v. Brasher, 60-489
| Decision Date | 03 August 1961 |
| Docket Number | No. 60-489,60-489 |
| Parties | CITY OF CORAL GABLES, a municipal corporation, Appellant, v. Floyd P. BRASHER, Appellee. |
| Court | Florida District Court of Appeals |
Edward L. Semple, City Atty., Miami, for appellant.
Brigham, Wright & Goodwin, Miami, for appellee.
Before PEARSON, TILLMAN, C. J., and HORTON and CARROLL, JJ.
The first final decree in this cause was reviewed by the Supreme Court of Florida pursuant to Article V, § 4(2), Florida Constitution, F.S.A. 1 The history of the cause prior to that decree is fully set forth in the opinion and need not be repeated here. The court upheld the validity of section 185.34, Fla.Stat., F.S.A., 2 but remanded the cause with directions that the City of Coral Gables be permitted to introduce evidence to rebut the presumption of service-connected disability raised by the statute and to enter such judgment as might be proper upon all the evidence.
Following the directions of the Supreme Court, the chancellor heard the testimony of the defendant city's medical expert and that of the plaintiff's treating physician. Each of the doctors qualified as an expert on diseases of the heart. Upon the vital matter of the cause of plaintiff's heart condition, these experts contradicted each other. The only other witness presented was the chief of police of the City of Coral Gables. He described the duties and employment record of the plaintiff, a police captain. Upon this evidence the chancellor made the following findings:
'1. That Plaintiff is suffering from heart disease which renders him permanently disabled from performing any of the duties of his office as a police officer of the defendant City;
'2. That Plaintiff's heart disease arose from and out of the discharge of his duties in the course of his employment by the defendant City, within the meaning of Section 4.2(e) of Ordinance No. 994 of Defendant City;
'3. That the presumption created by virtue of Chapter 57-340, Laws of Florida 1957, that Plaintiff's said heart disease was suffered in line of duty, has not been rebutted by the defendant City;
From this decree the city appeals, and we affirm.
The first three points raised by the city question the sufficiency of the evidence to support the chancellor's finding that the plaintiff's heart disease arose from and out of the discharge of his duties in the course of his employment by the defendant city. The positive testimony of plaintiff's treating physician, both in his sworn testimony at the trial and his affidavit which was accepted by the Retirement Board, would appear to provide a basis for the chancellor's finding that plaintiff's disability arose from and out of the discharge of his duty, but the city urges that such a finding is against reason. The city's expert testified that he rejected entirely the concept that strain of employment could be the cause of plaintiff's heart trouble. Because the expert opinions of the two doctors are not capable of proof in a courtroom, we are not in a position to say that the trial judge should have disregarded the testimony of either. By the very nature of the case it was the function of the chancellor to accept one and deny the other; 3 it is not the function of this court.
For us to accept the appellant's view that following its expert's testimony, the presumption vanished and the burden of proof shifted to the plaintiff to 'positively' prove the disability was service-connected (notwithstanding the testimony of plaintiff's expert) would be contrary to Florida law and would also have the effect of negating the presumption granted by section 185.34, supra. Permitting the testimony of the defendant's expert to have the effect of rebutting the presumption created by the statute in view of the contradictory and conflicting testimony of plaintiff's expert, would be contrary to the rule expressed by the Supreme Court of Florida in Kuehmsted v. Turnwall, 115 Fla. 692, 155 So. 847, wherein it was stated that where testimony of two medical experts is hopelessly conflicting, the evidence will be considered balanced as if it has not been offered. 4
Appellant's fourth point urges as error the refusal of the chancellor to admit into evidence the original court records of four divorce cases in which the appellee Brasher had been involved. The proffer of these records was made by the defendant city during the city's cross examination of the treating physician who testified on behalf of the plaintiff Brasher. 5 The proffer was objected to and the objection sustained. The practice of introducing original court files of other cases into evidence or a case on trial is not one to be encouraged. If there are material portions of the records referred to which are relevant to the trial, a transcript of such portions may be offered in evidence. It appears that the sole relevancy of the files offered in evidence was to prove that there were sources for strain upon officer Brasher other than his employment. The existence of the records of the circuit court in other cases is a matter of which the chancellor cannot take judicial notice, unless the record is brought to the attention of the court and made a part of the record in the case under consideration. E.g., In re Freeman's Adoption, Fla.1956, 90 So.2d 109; Kostecos v. Johnson, Fla.1956, 85 So.2d 594; Atlas Land Corporation v. Norman, 116 Fla. 800, 156 So. 885, 886. We do not find that the defendant city sought to introduce evidence independent of the...
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