Collins v. Farley
| Citation | 137 So.2d 31 |
| Decision Date | 01 February 1962 |
| Docket Number | No. 61-54,61-54 |
| Court | Florida District Court of Appeals |
| Parties | Everett A. COLLINS, Administrator ad litem of the Estate of Elonzo P. Dann, Jr., deceased, Appellant, v. Hubert FARLEY, Appellee. |
Ross, Reinhardt & Preddy, Miami, and Gilbert A. Haddad, So. Miami, for appellant.
Headley & Sudduth, Miami, for appellee.
Before PEARSON, TILLMAN, C, J., and HORTON and HENDRY, JJ.
The defendant in an action for personal injury, arising out of a collision at an intersection between an automobile and a motorcycle, appeals a final judgment entered pursuant to a jury verdict. The plaintiff driver was permitted to testify as to the actions of defendant-administrator's decedent as driver in the operation of decedent's automobile immediately prior to the collision. The controlling question is whether reversible error was committed by the admission of such testimony over the objection of the defendant that the testimony was as to a 'transaction' within the meaning of section 90.05, Fla.Stat., F.S.A. (Dead Man's Statute) 1
We hold that the objection to the questioned testimony 2 should have been sustained and finding the error prejudicial, we reverse for a new trial.
This question was discussed but not decided in Day v. Stickle, Fla.App.1959, 113 So.2d 559, 80 A.L.R.2d 1291, because as was pointed out in the opinion a decision was not necessary for the holding in that case. Nevertheless it was pointed out that in this jurisdiction the word 'transaction' as used in this statute has been judicially construed by the Supreme Court of Florida, 'to encompass every variety of affairs which can form the subject of negotiation, interviews or actions between two persons.' [Emphasis added] Holliday v. McKinne, 22 Fla. 153; Chapin v. Mitchell, 44 Fla. 225, 32 So. 875, 878; Embrey v. Southern Gas & Electric Corp., Fla.1953, 63 So.2d 258, 263.
To affirm the judgment appealed we would be require to concur with the trial judge in holding that an automobile accident is not a 'transaction' within the meaning of the Dead Man's Statute. The portion of the record quoted in footnote 2, supra, clearly domonstrates that the judge promptly recognized that this point was essential to a determination of the matter. His ruling was to the effect that as long as the plaintiff described the actions of automobiles and not individuals the statute did not prohibit the testimony. However, the problem is more complex than merely holding an automobile collision constitutes or does not constitute a transaction.
The Supreme Court of Arkansas in Rankin v. Morgan, 193 Ark. 751, 102 S.W.2d 552, held that an automobile collision is not a transaction within the meaning of that word in their Dead Man's Statute because the word 'transaction' should be defined in its ordinary meaning, to-wit: "A business deal; an act involving buying and selling; as, the transactions on the exchange." In Shaneybrook v. Blizzard, 209 Md. 304, 121 A.2d 218, it was held that a driver could testify as to his observations of a decedent driver because the relationship between the respective drivers was fortuitous and involuntary, and the word 'transaction' imports a mutuality or concert of action. 3 The Maryland court further stated that the deceased operator of the automobile was personally unknown to the plaintiff driver. Another jurisdiction which holds that a driver may testify as to his observations of the actions of a deceased driver is Iowa. The Supreme Court of that state in Turbot v. Repp, 247 Iowa 69, 72 N.W.2d 565, upheld the trial court's ruling that a driver was competent to testify, notwithstanding the Dead Man's Statute, as to the deceased driver's actions because the word 'transaction' used in the statute is not to be enlarged by construction and only a particular kind of testimony will be forbidden. The court continued that testimony concerning the appearance and actions of a decedent, ascertained merely by observation; and not for anything the witness had done for decedent is competent and admissible. 4
Thus it can be stated that there are numerous jurisdictions which base their reasoning upon the premise that a transaction can only occur where the parties involved are known to each other personally or mutually consent to the transaction. To follow this reasoning would, of course, make the Dead Man's Statute inapplicable to all negligence actions, except for those few occasions where the injured party by concidence personally knew the tort-feasor. 5
Other jurisdictions follow a contrary view to the jurisdictions just cited. For example, in Illinois a surviving motorist interested in the outcome of a personal injury action is not allowed to testify as to the actions of the deceased driver. Countryman v. Sullivan, 344 Ill.App. 371, 100 N.E.2d 799. Alabama also follows the view that the Dead Man's Statute is a bar to a claimant-driver testifying as to acts of the decedent in regard to operation of the latter's vehicle. The Supreme Court of Alabama in the case of Southern Natural Gas Co. v. Davidson, 225 Ala. 171, 142 So. 63, held that a plaintiff driver could not testify as to the actions of the deceased driver because their concurring conduct was a part of the res gestae of a personal encounter between them and such concurring conduct constituted a 'transaction' within the meaning of the Dead Man's Statute.
To the same effect is In Re Mueller's Estate, 166 Neb. 376, 89 N.W.2d 137, where it was held that a claimant-driver could not testify as to the acts of deceased driver and himself in regard to operation of their respective vehicles immediately before and at the time of the collision. The court in arriving at its holding defined the word 'transaction' in terms very similar to the definition given by our Supreme Court. 6 The Nebraska court further decided that the Dead Man's Statute applied to tort actions, as well as those arising out of contract. 7 In arriving at its holding, the Court reasoned that the actions of the interested party "as well as the movements of the deceased, were so closely related to, and inseparably connected with, the accident as to bring them within the knowledge or observation of the deceased, [making] them a necessary part of the accident, and thus [constituting] a transaction with the deceased."
Thus, as was stated in Day v. Stickle, supra, the 'judicial constructions of the word transaction in other jurisdictions as applied to automobile accidents has been almost as varied as the number of courts defining the term.' In Day v. Stickle, supra, it was held that the Dead Man's Statute does not apply to a guest in an automobile, who is completely inactive as to the control of the automobile in which he is riding, who in no way mutually participates in the ensuing collision, and who is merely the unfortunate victim of the actions of others, which actions he observes as independent facts and not as part of a transaction between the deceased driver and himself.
Facts and circumstances of this case are different, and consequently the same rule of law is not dispositive of the issue. Here we have an interested witness, who has complete control of his motorcycle, who observes the decedent's station wagon '[shoot] out in front of [him]', 8 and who reacts in a certain way just before the collision. So we have a witness who actively participates in the ensuing collision. The deceased driver, likewise, participates in the same occurrence. We are not unmindful that the word 'transaction' in the statute has been strictly construed. 9 Nevertheless both drivers' actions are so closely related and connected with the accident that their courses and movements constitute a 'variety of affair which [is] * * * the subject of action between two persons.'
Because we have determined that there was a transaction, it is our holding that testimony by the plaintiff-driver as to the actions of the deceased driver in the operation of his automobile, allegedly causing the accident, comes within the prohibition of § 90.05, Fla.Stat., F.S.A., and is therefore barred. 10
We have considered appellee's contention that the provisions of the statute were waived by this appellant, but do not find such to be the case. Also, we cannot hold the error harmless because the inadmissible testimony went to the very heart of the liability issue.
Appellant's two remaining points are as follows: Point II, directed to alleged improper comments upon the evidence by the trial judge, and Point III, directed to a ruling of the trial judge which precluded the use of plaintiff's income tax returns for impeachment when plaintiff claimed loss of earnings. It is unnecessary to consider Point II because reversal is required under Point I above discussed, but Point III must be dealt with because this case must be retried.
The plainiff is a taxi cab driver. He claimed a loss of earnings and a loss of earning capacity as a result of the accident, and testified as to the extent of these losses. The defendant sought to use properly authenticated copies of the plaintiff's income tax returns on cross-examination for the purpose of impeaching the testimony as to the amount of money earned before the accident. The trial judge, finding that income tax returns, especially those of cab drivers, where a large portion of the income is from gratuities, are unreliable indications of true income, held that the returns could not be used for impeachment. 11 The ruling was error. The court may not presume the plaintiff guilty of the crime of making a false return. The internal revenue tax returns were competent to be admitted as evidence bearing upon the issue of plaintiff's loss of income. Merriman v. Cities Service Gas Co., 11 F.R.D. 584 (W.D.Mo. 1951); Davis v. Atlantic Coast Line Railroad Co., 227 N.C. 561, 42 S.E.2d 905; see Graham Farm Land Co. v. Commonwealth, 363 Pa. 571, 70 A.2d 219.
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Farley v. Collins
...of Appeal, Third District, which has been certified by that court as passing upon a question of great public interest. Collins v. Farley, Fla.App., 137 So.2d 31; Art. V, Section 4(2), Florida Constitution, We must determine whether an automobile collision constitutes as 'transaction' within......
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Collins v. Farley
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