City of Coral Gables v. Jordan

• Decision Date: 24 May 1966
• Docket Number: No. 65-315.,65-315.
• Citation: 186 So.2d 60
• Parties: CITY OF CORAL GABLES, a Municipal Corporation of Florida, Appellant, v. Janet V. JORDAN and Janet V. Jordan, As Administratrix of the Estate of John Ellison Jordan, a Minor, Deceased, Appellee.
• Court: Florida District Court of Appeals

186 So.2d 60

CITY OF CORAL GABLES, a Municipal Corporation of Florida, Appellant, v. Janet V. JORDAN and Janet V. Jordan, As Administratrix of the Estate of John Ellison Jordan, a Minor, Deceased, Appellee.

No. 65-315.

District Court of Appeal of Florida. Third District.

May 3, 1966.

Rehearing Denied May 24, 1966.

Edward L. Semple, Coral Gables, Mallory H. Horton, Miami, for appellant.

Nichols, Gaither, Beckham, Colson & Spence and Aaron Podhurst and Robert Orseck, Miami, for appellee

Before HENDRY, C.J., and PEARSON and SWANN, JJ.

PER CURIAM.

This is an appeal by the defendant, the City of Coral Gables, from a final judgment entered on a verdict for the plaintiff in the sum of $100,000 in an action arising out of an automobile-motor scooter collision.

As a result of the collision and the alleged wrongful death of John Ellison Jordan, his mother, Janet V. Jordan, individually, and as administratrix of his estate, sued the defendant for damages predicated upon the negligence of a police officer of the defendant.

John Jordan and one Robert Lee Bell, were students at Coral Gables High School. On September 9, 1963, during the noon luncheon recess, Jordan sustained fatal injuries when a motor scooter upon which he was riding as a passenger collided with an automobile at the intersection of Le Jeune Road and Altara Avenue. At the time of the accident, the decedent was returning to school from lunch. He was seated on the passenger seat of the motor scooter, directly behind the operator, Bell.

Le Jeune Road runs north and south and has two lanes for northbound traffic and two lanes for southbound traffic. Altara Avenue runs east and west and forms a "T" intersection with Le Jeune Road. The scooter was proceeding northward on Le Jeune Road, in the eastern or outside lane, a short distance behind a northbound car. As the scooter approached Altara Avenue, the car ahead signalled for a right hand turn and executed the turn into Altara Avenue. Bell testified that he slowed down to approximately 15 to 20 miles per hour to allow the car ahead to make the turn and then proceeded on into the intersection. He did not see a police officer or anyone in the intersection.

A car, which had been stopped, facing west on Altara was signalled into the intersection, directly into the path of the oncoming scooter, by a Coral Gables police officer. The collision occurred, and Jordan was thrown from the scooter and killed. The officer, prior to signalling the car out of Altara, had stopped a northbound car in the western or inside lane of Le Jeune Road and was standing about five or six feet north of the right front wheel of that car. The officer testified that after signalling the car out of Altara he looked up and saw the motor scooter about 125 to 150 feet away. He put up his hand for the scooter to stop and when it did not, he raised his other hand, but the scooter came on and collided with the automobile which he had signalled into the intersection.

The appellant has argued three points on appeal. The first two present the same question:

"Is evidence of defendants' settlement with a third party in the same accident so prejudicial to the defendant as to require a mistrial or in the alternative, a new trial."

On the basis of the pleadings, it is evident that the defendant, appellant, was relying strongly upon a showing that plaintiff's decedent met his death through the negligence of the operator of the motor scooter, and that this negligence was the sole proximate cause of the collision. The operator of the motor scooter (Robert Lee Bell) was subpoenaed and placed on the stand by the plaintiff, appellee. He was interrogated by appellee's counsel as to what transpired before and at the time of the collision.

The record discloses that defense counsel, on cross-examination of Bell, asked the following questions:

"Q Your father investigated this accident pretty thoroughly initially did he not?

"A Yes, sir; I believe so.

"Q He took a lot of statements from people?

"A Yes, sir.

"Q Did your father take a statement from Mrs. Metzer?

"A Yes, sir.

"Q Did your father take a statement from Miss Prather?

"A Yes, sir.

"Q Have you seen those statements?

"A Yes, sir."

Subsequently, upon redirect examination, counsel for the plaintiff asked the following question:

"Q Bill, at the present time you and your father have no interest in this law suit. All claims have been settled with the City of Coral Gables"

"A Yes, sir, as far as I know."

Thereupon, in the absence of the jury, the defendant moved for a mistrial, and the trial court denied the motion.

Section 54.28, Fla. Stat.¹, F.S.A. prohibits the revelation to the jury of a settlement by an injured party with one of several tort feasors. See Hertz Corp. v. Hellens, Fla.App. 1962, 140 So.2d 73. It would seem to be just as damaging to a fair trial to permit the injured party to reveal to the jury that the alleged tort feasor has settled with another injured party in the same accident. Cf., Annot. at 161 A.L.R. 395. See also Annot. at 20 A.L.R.2d 304.

On this appeal, the appellee does not argue that the evidence of the settlement would be initially admissible, but it is urged that the appellant, by his own questions, opened the door on this point. This reasoning was the basis of the trial judge's decision denying the subsequent motion for a mistrial. He ruled that the only reason that appellant could have had for asking on cross examination the questions concerning the investigation of the accident by the witness' father was to indicate to the jury that the witness might have some interest in the litigation. Having reached this conclusion, he held the evidence of the settlement admissible to rebut the existence of interest in the litigation.

There appears to be no logical relationship between the interrogation of Bell concerning his father's investigation of the accident and the settlement by Bell and his father of their claims against the appellant. The information brought out on cross-examination, that Bell's father had taken statements of witnesses, was not relevant to any issue, but we need not decide whether the cross examination was proper because no objection was made.

The inquiry follows: Was the cross examination as to the taking of witnesses' statements prejudicial to the appellee, plaintiff? We think it is apparent that: (a) the information revealed was not prejudicial to the plaintiff at that stage of the trial; (b) it might have become prejudicial to the plaintiff at some subsequent stage of the trial if and when other information was revealed to the jury. The cross-examination was not prejudicial at the time the questions relating to the taking of statements were asked because the jury already knew that Bell had been involved in the accident. The taking of statements, without more information, indicated nothing except an involvement and a natural concern.

Upon the other hand, the knowledge of the settlement by the driver with the defendant was immediately and completely destructive to the possibility of a fair trial between the plaintiff and the defendant. Every juror knew that plaintiff's witness, Bell, was the driver of the motor scooter, and that appellant, defendant, intended to show that the deceased had met his death solely through the negligent acts of Bell. In this atmosphere, when the jury became aware that the city had settled the claims of Bell and his father, appellant's defense that Bell was the sole cause of the accident evaporated.

We recognize that the decisions in our sister states are not uniform and that there is respectable authority to the contrary.² However, in the absence of controlling precedent, we must adopt that rule which is in accordance with reason and justice. The public policy of this state favors amicable settlement of disputes and the avoidance of litigation.³ This policy is implemented by excluding evidence of an offer to compromise⁴ and a release or covenant not to sue tort feasors.⁵ In commenting upon a similar policy in Fenberg v. Rosenthal, 348 Ill. App. 510, 109 N.E.2d 402, at page 405 (1952), the Illinois Court stated:

"* * * our courts are firmly committed to the principle that offers of compromise or settlements with third persons are not admissible. Plaintiff cites authority to the contrary * * * We have examined the cases cited. All are cases where verdicts were affirmed notwithstanding the admission of such testimony; none where the exclusion of such testimony was held error. In each of these cases the courts have been careful to point out that the jury was instructed that evidence of the offer of compromise was admitted solely upon the question of the credibility of the witness and not on the question of liability. We think, however, that such reasoning is not realistic, for, as pointed out in the cases committed to contrary doctrine, it is a practical impossibility to eradicate from the jury's

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