Erp v. Carroll

• Decision Date: 18 August 1983
• Docket Number: No. 81-1405,81-1405
• Citation: 438 So.2d 31
• Parties: James Joseph ERP, Appellant, v. Lillian Knapp CARROLL, Appellee.
• Court: Florida District Court of Appeals

Page 31

438 So.2d 31

James Joseph ERP, Appellant, v. Lillian Knapp CARROLL, Appellee.

No. 81-1405.

District Court of Appeal of Florida Fifth District.

Aug. 18, 1983.

Rehearing Denied Sept. 27, 1983.

Seymour H. Rowland, Jr., Ocala, for appellant.

John H. Piccin of Musleh, Piccin, Atkins & Krehl, Ocala, for appellee.

COWART, Judge.

This case involves the proper function and scope of impeachment of an adverse party when called as a witness under Florida Rule of Civil Procedure 1.450(a) and whether, for one wrongful arrest, recovery can be had for separate damages under both the theory of false imprisonment and the theory of malicious prosecution.

Appellee, hereinafter called plaintiff, sued appellant, hereinafter called defendant, for compensatory and punitive damages for malicious prosecution, false imprisonment, slander, and intentional infliction of emotional distress. At trial, during the presentation of evidence in the plaintiff's case in chief, the plaintiff called two witnesses, who, over objection, testified that the defendant's reputation in the community for truth and veracity was bad. ¹

During the defendant's case in chief the defendant did not take the stand in his own behalf and called but one witness, Deputy Sheriff Caraway, who testified only about his own actions on May 10, 1978, in talking with a Mr. Ramputi and in arresting the plaintiff based on information he received from Mr. Ramputi and from the plaintiff and her husband. When Deputy Caraway was asked by defense counsel if he had a conversation with the defendant on May 10, 1978, Deputy Caraway answered, "No, sir, I have not met the gentleman." Plaintiff's counsel on cross-examination asked Deputy Caraway, "You have never seen Mr. Erp before and you really wouldn't know whether he was one of the people there [at the scene of the arrest] or not, would you?" Answer, "No, sir."

On rebuttal plaintiff called the defendant as a witness on behalf of the plaintiff and began examining him about his actions outside the presence of the arresting officer and involving nothing in anyway inconsistent with the testimony of the arresting officer. The defendant in fact corroborated Deputy Caraway's testimony saying, "I never really seen [sic] Officer Caraway, never talked to him" and "I told you and so did Mr. Caraway that I've never talked to Mr. Caraway ... it was a sheriff or police, but I never talked to Deputy Sheriff Caraway." When plaintiff's counsel asked the defendant about the defendant telling "the previous jury in this case you've been convicted of--" defendant's counsel objected on the ground that the plaintiff's testimony was in no way in rebuttal to that of Officer Caraway saying, "They're putting this in solely for the purpose of asking him how many times he's been convicted of a crime and that's inflammatory--[and] should not be injected in this trial." At the urging of plaintiff's counsel the trial judge declared the defendant was an adverse witness because he was an adverse party but that the defendant could not be impeached as to conviction of crime unless his testimony was inconsistent with some prior testimony. Accordingly, plaintiff's counsel questioned defendant about his previous testimony in a deposition and finally the court permitted plaintiff's counsel to impeach the defendant by asking him if he had ever been convicted and how many times. ²

It was error to permit plaintiff in her case in chief to introduce evidence of the defendant's bad reputation for truth and veracity because the defendant's veracity was not relevant to any issue in the cause being tried and the defendant had not testified and his credibility was not in issue. A witness may not be impeached before he has testified. ³

Where the defendant was called solely as a rebuttal witness, it was also error to permit plaintiff to elicit testimony which in no substantial way contradicted or rebutted the testimony of the defendant's only witness, Deputy Caraway. This error in permitting the plaintiff to call the defendant as a so-called rebuttal witness and then to elicit non-rebuttal testimony did not serve to correct the first error in permitting a premature and unwarranted impeachment as to the defendant's reputation for veracity nor did it become a proper basis for then permitting impeachment as to conviction for crime.

Florida Rule of Civil Procedure 1.450(a), the "adverse witness" rule, provides:

A party may interrogate any unwilling or hostile witness by leading questions. A party may call an adverse party or an officer, director, or managing agent of a public or private corporation or of a partnership or association which is an adverse party and interrogate him by leading questions and contradict and impeach him in all respects as if he had been called by the adverse party and the witness thus called may be contradicted and impeached by or on behalf of the adverse party also and may be cross-examined by the adverse party only upon the subject matter of his examination in chief.

This subsection of rule 1.450 was adopted from former Fed.R.Civ.P. 43(b) (1937). In connection with the enactment of the Federal Rules of Evidence in 1975, Federal Rule 43(b) was abrogated as it was considered no longer needed or appropriate because the scope of cross-examination was covered by Fed.R.Evid. 611(b); the interrogation of an adverse party or witness identified with him was covered by Fed.R.Evid. 611(c) and impeachment was treated in Fed.R.Evid. 607. The abrogation of Federal Rule 43(b) because of the enactment of the cited provisions of the Federal Rules of Evidence also implicitly serves to construe the purpose of the former federal rule and of our present rule 1.450(a) which is based on the former federal rule. Section 90.612(2), Florida Statutes (1981), now provides for the scope of cross-examination, substantially adopting the substance of Fed.R.Evid. 611(b). Section 90.612(3), Florida Statutes (1981), now provides generally for leading questions only on cross-examination and recross-examination and the topic of who may impeach is now provided in section 90.608, Florida Statutes (1981). Accordingly, consideration should be given to the elimination of the second sentence in Florida Rule of Civil Procedure 1.450(a) for the same reason that Federal Rule 43(b) was abrogated. The first sentence of Florida Rule of Civil Procedure 1.450(a) would then specifically provide for the use of leading questions as to unwilling or hostile witnesses, as an exception provided by rule of court as is explicitly permitted by section 90.612(3), Florida Statutes (1981). Actually the first sentence in rule 1.450(a) would be slightly improved by being replaced with the last sentence in Fed.R.Evid. 611(c), which provides:

where a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.

Actually, peculiarly, the Florida Evidence Code has not heretofore been applicable to this particular action because when our code was first adopted it applied only to civil actions accruing after July 1, 1979, and the cause of action in this case accrued on May 10, 1978. Although section 90.103, Florida Statutes (1979), was amended in 1981 to make the Florida Evidence Code applicable to civil actions pending on or brought after October 1, 1981, this action had already been tried by that date. However, the 1981 amendment to the statute would make the Florida Evidence Code applicable to any retrial of this case. While the Florida Evidence Code was not applicable to the trial of this case below, we interpret the supreme court's approval of the Florida Evidence Code, 376 So.2d 1161 (Fla.1979), without the amendment of Florida Rule of Civil Procedure 1.450(a) to mean that provisions of both the statute and the rule need not, and should not, be construed to be inconsistent. ⁴ The proper application of Rule 1.450(a) as to leading questions, contradictions and impeachment is simplified by looking to substance rather than to form and by bearing in mind the proper purposes and functions of these tools and rules of evidence.

LEADING QUESTIONS: Although a party rarely has a choice in selecting the witnesses needed to prove his case, nevertheless a party who calls a witness is expected to have reason to believe that the witness will give testimony favorable to that party without the need to use leading questions. From this assumption comes the general rule that a party may not ask a witness a leading question on direct or redirect examination. Fla.Stat. § 90.612(3)(a), (1981). On the other hand there is a similar assumption that a witness did give favorable testimony to the calling party and that the adverse party generally needs, and should be given, the advantage of using leading questions on cross-examination of that witness in the interest of a proper search for the truth. Fla.Stat. § 90.612(3)(b), (1981). There is also a general principle that a party who calls a witness as his own vouches for that witness' credibility. It is for this reason that there is a traditional rule against impeaching a party's own witness. Fla.Stat. § 90.608(1), (1981). There was a broad primitive notion that a party was morally bound by the statements of his witness. The application of this latter rule made it very hazardous to call an adverse party as a witness. However an adverse party is not always an adverse witness. An adverse witness means only one who gives evidence on a material matter ⁵ that is adverse, unfavorable or prejudicial to the party calling the witness. See Hernandez v. State, 156 Fla 356, 22 So.2d 781 (Fla.1945); Johnson v. State, 178 So.2d 724, 728 (Fla. 2d DCA 1965). Cf., Direct Transport Company of Florida v. Rakaskas, 167 So.2d 623 (Fla. 3d DCA 1964), cert. dismd., 176 So.2d 68 (Fla.1965). A knowledgeable but unwilling, reluctant or recalcitrant witness should always be subject to interrogation by leading questions...