Collins Fruit Co. v. Giglio

• Decision Date: 23 March 1966
• Docket Number: No. 4882,4882
• Citation: 184 So.2d 447
• Parties: COLLINS FRUIT COMPANY, a Florida corporation, and James Sheppard, Appellants, v. Mary F. GIGLIO, Appellee.
• Court: Florida District Court of Appeals

Page 447

184 So.2d 447

COLLINS FRUIT COMPANY, a Florida corporation, and James Sheppard, Appellants, v. Mary F. GIGLIO, Appellee.

No. 4882.

District Court of Appeal of Florida, Second District.

March 23, 1966.

Michael L. Kinney and William R. Hapner, Jr., of Fowler, White, Gillen, Humkey & Trenam, Tampa, for appellants.

E. B. Rood, Tampa, for appellee.

SHANNON, Acting Chief Judge.

The issue presented on this appeal is whether the trial judge erred in granting the plaintiff's motion for a new trial, after the jury had returned a verdict in favor of the defendants.

Plaintiff brought this action to recover for the wrongful death of her husband, who was killed when his station wagon was struck by a tractor-trailer owned by Defendant Collins Fruit Company and driven by Defendant James Sheppard. At the trial there was sufficient evidence to submit to the jury the issues of Sheppard's negligence, the decedent's contributory negligence and the possible application of the doctrine of Last Clear Chance.

At the conclusion of all the evidence, counsel for the plaintiff presented his closing argument, during which he discussed Last Clear Chance. The defendants' closing argument contained no reference to Last Clear Chance, but discussed rather extensively the decedent's contributory negligence. At one point counsel stated:

'* * * (T)here has been a showing of contributory negligence on the part of the driver of the station wagon and that, therefore, your verdict should be for the Defendant.'

Plaintiff's attorney then argued in rebuttal, and tried to explain that Last Clear Chance could nullify the effect of any contributory negligence. Upon objection by the defendants, the trial judge refused to allow any further argument directed to Last Clear Chance, on the theory that since defense counsel had not mentioned Last Clear Chance in his closing, plaintiff could not refer to it in rebuttal.

After the jury had decided for the defendants, the judge granted the new trial, one of the grounds being:

'The refusal of the court to allow plaintiff's attorney to discuss, in his rebuttal argument, the doctrine of last clear chance, was the third error committed by the court. In view of the fact that the court instructed the jury on the possible application of the doctrine, the plaintiff's attorney should have been given an opportunity to discuss it during his final argument to explain away, by rebuttal, defense counsel's argument relative to contributory negligence. * * *'

There are two additional grounds assigned by the lower court in its order, one of which is significant in its relation to the ground quoted above, and on which we shall comment later. For present purposes, however, we simply state that we will consider whether the above reason was sufficient to allow a new trial to be granted.

At the outset, we are confronted with the established rule that the granting of a new trial lies within the sound discretion of the trial judge, whose decision will not be disturbed absent a strong showing that the discretion has been abused. E.g., Cloud v. Fallis, Fla.1959, 110 So.2d 669. While Cloud v. Fallis sets forth general guidelines, it does not purport to hold that in every instance in which a trial judge sets aside a jury verdict and grants a new trial, an appellate court must inevitably accede to his 'broad discretion.' See Russo v. Clark, Fla.1962, 147 So.2d 1. Fundamentally more important than the verbal expressions of this rule is a distinction which, although seldom set forth, finds support in the decisions; the broad discretion rule has the most far-reaching effect in situations where the new trial has been granted on the ground that the verdict was against the manifest weight of the evidence, Cloud v. Fallis, supra, and Pyms v. Meranda, Fla.1957, 98 So.2d 341, and conversely, the most limited application when the new trial is awarded on a non-evidentiary ground. See McAllister Hotel, Inc. v. Porte, Fla.1960, 123 So.2d 339; Nabelski v. Turner, Fla.App.1965, 173 So.2d 729; Tye v. Ruark, Fla.App.1965, 179 So.2d 612; and Note, 16 U.Fla.L.Rev., 60, 70 (1963). The distinction is logical in view of the rationale that an appellate court, relying on a written record only, is poorly equipped to weigh evidence; but where the reason for granting a new trial involves a question of law, a reviewing court is no more equal footing with the trial judge.

This is not to say that the ruling of a trial judge granting a new trial on a matter of law, as opposed to fact, arrives at an appellate court shorn of the presumption that the trial judge correctly exercised his broad discretion. See, e.g., Florida Coastal Theatres, Inc. v. Belflower, 1947, 159 Fla. 741, 32 So.2d 738; Florida Dairies Co. v. Ward, 1938, 131 Fla. 76, 178 So. 906; Huston v. Green, 1926, 91 Fla. 434, 435, 108 So. 846. From a practical standpoint, however, there is more of substance in appellate review when the issue posed is the granting of a new trial based on a particular ruling by the judge, rather than his overall impression of the evidence.

We return now to the specific problem presented in this case, and observe that here the trial judge considered that he had erred by refusing to allow the plaintiff's attorney to argue Last Clear Chance in rebuttal.

Although it is axiomatic that the arguments of counsel are not evidence, it would be naive to suppose that they do not have a profound effect upon the jury. These summarizing remarks often tie together for the jurors previously unconnected or seemingly irrelevant...