Dempsey v. Shell Oil Co.

• Decision Date: 13 November 1991
• Docket Number: No. 90-1858,90-1858
• Citation: 589 So.2d 373
• Parties: 16 Fla. L. Weekly D2856 Carlyle Francis DEMPSEY, Appellant, v. SHELL OIL COMPANY, a Delaware Corporation, and William J. Irwin, Appellees.
• Court: Florida District Court of Appeals

Page 373

589 So.2d 373

16 Fla. L. Weekly D2856

Carlyle Francis DEMPSEY, Appellant, v. SHELL OIL COMPANY, a Delaware Corporation, and William J Irwin, Appellees.

No. 90-1858.

District Court of Appeal of Florida Fourth District.

Nov. 13, 1991.

Rehearing Denied Dec. 18, 1991.

Scott Mager, Cooney, Ward, Lesher & Damon, West Palm Beach, and Joseph Glick and Charles Prince, Fort Lauderdale, for appellant.

Joe N. Unger, Law Offices of Joe N. Unger, P.A., Miami, and Joel Kaplan, Kaplan & Freedman, Miami, for appellees.

ANSTEAD, Judge.

This is an appeal by the plaintiff, Carlyle Francis Dempsey ("Dempsey"), from an adverse final judgment in a personal injury action brought after he was struck by a vehicle owned by defendant Shell Oil Company, and driven by co-defendant, William Irwin ("Irwin"), a Shell Oil employee. Because of errors we believe took place in the receipt or exclusion of evidence we reverse.

FACTS

On December 23, 1985 at approximately six a.m., Dempsey was struck by a Shell Oil vehicle under nighttime conditions on unlit State Road 84, just east of its intersection with Pine Island Road, in the town of Davie. A lighted 7-Eleven sign and the traffic signals at the intersection were the only sources of illumination, other than the headlights of the Shell Oil vehicle. Dempsey was walking to work at Sears, following the same route he had taken daily for the previous 3 1/2 years, and was attempting to cross the three eastbound lanes of State Road 84 from south to north. Irwin was travelling from west to east with his low beam headlights and testified by deposition At trial, Dempsey's expert witness, David Wiggins, a mechanical engineer and accident reconstruction expert, proffered the results of an experiment conducted in 1982 in which he measured headlight sight distances of a stationary vehicle. The trial court refused to admit the results of the experiment.

that he first saw Dempsey approximately 100 feet prior to the impact. There were no eyewitnesses to the accident other than Irwin and Dempsey. Each claimed to have had the green light. Dempsey suffered multiple fractures, for which he was hospitalized many times and is permanently disabled.

Subsequently, Shell Oil called Dr. Joseph Wattleworth, an expert in accident reconstruction, who testified that in his opinion Irwin was able to see Dempsey about 150 feet away from the point of impact. Based upon that determination and other information, he concluded that Irwin could not have avoided the collision. On cross-examination, Dempsey was not permitted to question Wattleworth as to the distance objects could be seen with low beam headlights, or as to what role such visibility may have played in the accident. Dempsey was permitted to ask Wattleworth whether he had considered headlight sight distance as part of his reconstruction and opinion. When Wattleworth replied in the negative, the trial court refused to allow further inquiry on the matter. Wattleworth had testified in a pretrial deposition that under nighttime conditions, at a speed of 40 mph, 200-250 feet was a safe distance within which to reveal objects, including pedestrians.

Shell read into evidence a portion of Dempsey's deposition, wherein he denied being involuntarily terminated from a prior job that he had years before the subject incident. Thereafter, Shell was allowed to call a former employer of Dempsey to testify that Dempsey had, in fact, been involuntarily terminated from that position due to carelessness.

IMPEACHMENT ON COLLATERAL ISSUE

Dempsey contends the trial court erred in allowing him to be questioned and impeached about the manner and reasons for his separation from the prior job, which he contends is a collateral issue, since he made no claim for lost wages or loss of earning capacity. At trial the following exchange took place:

Mr. Kaplan [Counsel for appellees]: Did you want to take something up?

Mr. Glick [Counsel for appellant]: Yes.

Your Honor, we just have a motion to make before we start this morning. It's been brought to our attention, Mr. Kaplan and I have been talking, that one of the witnesses that he plans to call this morning is a lady by the name of Marchita Ott, O-T-T, who I believe is in the personnel department at Bennett Community Hospital where Mr. Dempsey was employed some time ago back in I believe it was around 19--Late 1970s, 1980. And the reason that Mr. Kaplan has advised me for bringing this witness is for impeachment purposes. I believe what she's going to testify to is that Mr. Dempsey's employment at the hospital resulted in him being terminated or fired from that position. Now there is no claim being made in this case for lost wages--

The Court: Any particular reason, or just the fact that he was terminated?

Mr. Glick: Well, I believe in Mr. Dempsey's deposition a question was asked of him, something to do with whether his employments had all been voluntary departures or not or a question to that effect.

But there is no claim, Your Honor, being made in this case for lost wages or lost earning capacity. When the complaint was filed in this case, there was no claim made in the capacity. So this is purely collateral. And my understanding of the Rules of Evidence are that if Mr. Kaplan wanted to impeach the Plaintiff, the witness, with this, you know, he can ask him the question on cross examination. But he's precluded from bringing in collateral evidence of that, inasmuch as it's a collateral matter. The Court: All right. Response?

It has no independent relevancy to this particular lawsuit.

Mr. Kaplan: First of all, it goes to the instruction on the believability of a witness, whether he's telling the truth. I am going to bring this in for impeachment purposes.

The Court: Just stop there a minute. Impeachment purposes of what? I haven't heard anything.

Mr. Kaplan: Here we go.

The Court: Go ahead.

Mr. Kaplan: I haven't started my case yet. I'm going to read before she gets on the stand from his deposition of the party, from his deposition, the following questions. And I'll bring it right down to the bottom.

The Court: Sure.

Mr. Kaplan: 'Question: Were both of your departures voluntary? Yes, they were both voluntary. I was never fired, period.

'Marchita, would you please take the stand? Would you tell the Jury what the conditions of this man's termination was at Bennett? He was fired.'

The Court: All right. I'll overrule the objection. That's legitimate--if he handles it that way. I just haven't heard any testimony about anything up to this point as far as work.

Mr. Kaplan: Well, it's--

The Court: Who is it you're going to call now?

Mr. Kaplan: I have Officer Gregg in the back. Just so we don't get interrupted, it was the same line on K-Mart. And I've got his separation, firing and termination report in here and they've stipulated to authenticity. So I'll run this into evidence also at the same time.

Mr. Glick: Judge, if I could, the deposition that Mr. Kaplan read, that was taken before, you know, the complaint in this particular case was filed. In other words, the deposition--You know the history of the case. I don't have to repeat that.

The Court: Sure.

Mr. Glick: That deposition was taken in conjunction with the original first lawsuit that was filed. As you know, we took the voluntary dismissal and refiled the complaint.

Mr. Kaplan: And there was an order entered incorporating all discovery from the prior case into this case.

The Court: Wait a minute. It doesn't deal with the question of whether he's claiming loss of wages or loss of money as far as employment's concerned. It simply goes to the question that allegedly, whatever, at some point he testified under oath in his deposition which would be read that he voluntarily left prior employment. And evidently, allegedly, that may or may not have been true. And somebody's going to come in and say, "No. He was fired."

Now, whatever weight that bears I don't know, but it goes to impeachment of that portion. I don't think it has anything to do with his claim for lost wages, lost earning capacity, et cetera. It just goes to the question of his veracity and believability.

So I guess that's a motion in limine I suppose you'll call that.

Mr. Glick: Yes sir.

The Court: I'll deny it then.

Initially, we hold that the objections interposed by Dempsey as set out above were sufficient to preserve this issue for appeal. See Fincke v. Peeples, 476 So.2d 1319 (Fla. 4th DCA 1985), rev. den. 486 So.2d 596 (Fla.1986).

On the merits, Dempsey asserts that Ott's testimony was not proper impeachment of his credibility and highly prejudicial to his case, which was largely based upon the jury's conclusion as to the credibility of the two people involved in the accident. He relies upon Hitchcock v. State, 413 So.2d 741 (Fla.), cert. den. 459 U.S. 960, 103 S.Ct. 274, 74 L.Ed.2d 213 (1982) for the proposition that evidence of particular acts of misconduct cannot be introduced to impeach the credibility of a witness. See also Simmons v. Baptist Hospital of Miami, 454 So.2d 681 (Fla. 3d DCA 1984).

Section 90.608, Fla.Evid. Code (1991) governs impeachment by contradiction:

(1) Any party, including the party calling the witness, may attack the credibility of a witness by:

* * * * * *

(5) Proof by other witnesses that material facts are not as testified to by the witness being impeached. (emphasis supplied).

The 1979 Sponsor's note to Section 90.608 states:

Where it is sought to impeach a witness on the basis of testimony given on cross-examination, the testimony must, of course, be relevant and material ... [T]he test of relevancy and materiality is whether the cross-examining party could have, for any purpose other than impeachment, introduced evidence on the subject in chief. See Tully v. State, 69 Fla. 662, 68 So. 934 (1915); Lockwood v. State, 107 So.2d 770 (Fla. 2d DCA 1959). On cross-examination of a witness on collateral or irrelevant matters the answer given by the witness is conclusive and it...