Ewing v. Miller

• Court: Florida District Court of Appeals
• Writing for the Court: FARRINGTON, OTIS; SMITH, C. J., and ALLEN
• Citation: Ewing v. Miller, 172 So.2d 889 (Fla. App. 1965)
• Decision Date: 10 March 1965
• Docket Number: No. 4222,4222
• Parties: Aubrey K. EWING, Appellant, v. Harry Daniel MILLER, Appellee.

Page 889

172 So.2d 889

Aubrey K. EWING, Appellant, v. Harry Daniel MILLER, Appellee.

No. 4222.

District Court of Appeal of Florida, Second District.

March 10, 1965.

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

Lemuel S. Hunnicutt, of McEwen & Hunnicutt, St. Petersburg, for appellee.

FARRINGTON, OTIS, Associate Judge.

This is an appeal from an order granting a new trial after a jury verdict and judgment for the defendant in a case arising out of a collision between two automobiles. The parties will be referred to as they stood in the trial court.

The collision occurred on Central Avenue at the intersection with 58th Street in the City of St. Petersburg, Florida. Prior to the collision plaintiff Miller was driving his Ford Thunderbird convertible automobile west on Central Avenue, while the defendant was driving a Pontiac automobile facing east on Central Avenue. Defendant attempted a left turn across the west-bound traffic lane in which plaintiff was driving, resulting in the collision. Plaintiff's Thunderbird left skid marks measuring 54 feet prior to impact. Defendant's automobile left no skid marks prior to impact.

The speed limit on Central Avenue at the point of collision was shown to be 35 miles per hour. Both plaintiff and his wife testified that at no time in the course of the drive culminating in the accident did the speed of their automobile exceed 35 miles per hour.

Defendant produced as a witness one Charles Carroll who testified that shortly prior to the accident he (Carroll) was driving west on Central Avenue between 49th and 50th Streets (about 3/4 mile from scene of accident) at approximately 30 miles per hour when the Thunderbird which was subsequently involved in the accident passed him going in the same direction at a speed which Carroll estimated as double the speed of Carroll's vehicle, that he kept the Thunderbird in sight for possibly two or three blocks, but that it passed from sight prior to the scene of the accident.

Before Carroll testified plaintiff's attorney objected to his anticipated testimony on the ground that testimony as to the speed of plaintiff's vehicle at a point eight blocks from the accident scene was too remote to have any probative value. In overruling this objection the judge stated out of the presence of the jury that although the testimony would have no bearing on the accident itself, it would go to the weight or credibility of the testimony of plaintiff and his wife to the effect that plaintiff had not exceeded the speed limit prior to the accident. The ruling of the trial judge that the evidence was admissible for rebuttal purposes as against objection on the ground of remoteness is not an issue in this appeal since the judge's subsequent order striking Carroll's testimony was on other grounds. See Annot., 46 A.L.R.2d 9, 61, for discussion of admissibility of such testimony for rebuttal purposes.

On cross-examination the witness Carroll receded somewhat from the positiveness of his direct testimony that the Thunderird automobile which passed him approximately eight blocks from the accident was the vehicle subsequently involved in the accident, with the reult that the court granted plaintiff's motion to strike the witness Carroll's testimony as appears from the following excerpts from the trial transcript:

'Q What color was that Thunderbird convertible?

'A It was a light color. I assume it was a light tan or coral.

'Q Well, did you examine the automobile when you arrived at the scene of the accident?

'A No. Not closely.

'Q Well, was it tan or was it yellow, or what color was it?

'A It was dark. I am assuming that it was tan. Tan.

'Q Mr. Carroll, do you know that color that automobile was?

'A Definitely, to say definitely, no. It was a light colored automobile.

'Q All right, sir. Now, did you notice any of the occupants of that automobile?

'A Yes. There was a lady, and I believe a child.

'Q And did you see the driver of that automobile?

'A Yes.

'Q And who was the driver?

'A I-I assume that it was Mr. Miller. I couldn't identify him. The man that was driving the car was wearing a white jacket and dark trousers.

'Q And you saw this as he went by you 70 miles an hour on that--on your left side?

'A I didn't say that. I saw his white jacket and dark trousers at the scene of the accident. I didn't see him in the automobile, no.

'Q. Mr. Carroll, I am going to ask you a bare question; can you swear under oath that the car that passed you was the car that was involved in the collision?

'A No, sir.

'Q --the Thunderbird Automobile. Sir?

'A No, sir, I could not swear that under oath, because I did not get the license number.

'Q All right. Now, from the time that you--that this particular Thunderbird passed you, between 49th and 50th Street, your testimony is that you did not keep that car in your sight; is that correct?

'A Not to the scene of the accident, no sir.

'Q Well, how far did you keep this car in sight?

'A Possibly two or three blocks.

* * *

* * *

'Q If I were to tell you and prove to you that that automobile was yellow, would that change your story? The automobile involved in the collision?

'A I haven't stated what color it was. It was a light colored automobile.

'Q Mr. Carroll, you stated that automobile was tan, that passed you. If you want me to have it read back to you, I will.

'A I said it was dark. I assume it was tan.

'Q The truth of the matter is you don't know whether the automobile this man was driving is the car involved in that accident; do you?

'A I stated while ago I couldn't swear this was the car. I answered that question.

* * *

* * *

'Q I say when this automobile--light colored automobile, Thunderbird automobile, passed you between 49th and 50th Street on Central, did you notice the occupants in the car?

'A No, sir, the top was up.

'Q You did not?

'A No. No, I could not see the occupants in the car.

'Q So, you don't know who was in the car?

'A I couldn't identify them.

'Q I mean the number and the type of occupants?

'A No, I couldn't identify the number of people in the car at the time it passed me.

'Q Well, did you-did you note any of the occupants in the car?

'A Other than there were just people in the car. I knew there was at least two people in it.

'Q All right. Did you see two people in the car?

'A Yes, I did see two people in the car; the driver and someone sitting in the front seat.

'Q All right. Was the driver a male or female?

'A At night, I couldn't answer that.

'Q All right. Was the passenger male or female?

'A I couldn't answer that, either

'THE COURT: The Court's ruling previously then, was evidently based on a misunderstanding of what this witness testified to.

'MR. HUNNICUTT: I appreciate that, your Honor, because this----

'THE COURT: All right. In view of this, the Court is going to grant your motion to strike this witness' testimony.

'MR. HUNNICUTT: Thank you, your Honor.

'THE COURT: You are excused. (Witness excused).

'THE COURT: The testimony of this witness--the entire testimony of this witness will be stricken from the record and the jury is instructed to disregard every bit of testimony that this witness has given. Do you understand that?'

At the conclusion of the trial the jury returned its verdict for the defendant. Thereafter on motion of plaintiff the trial court entered an order granting a new trial, giving as reason therefor 'that the testimony of this witness [Carroll] was so prejudicial as to be incurable by the Court's cautionary remarks to the jury; that neither rebuke nor retraction entirely destroyed the influence of this witness's testimony to the jury and that this witness's testimony opened the minds of the jury to improper speculation.'

It is clearly indicated by the Court's order granting a new trial as well as the Court's statement at the time of ordering Carroll's testimony stricken that the reason for the Court's ruling that Carroll's testimony was improper for consideration by the jury was inconclusiveness of identification rather than remoteness. We therefore turn to the question of whether Carroll's testimony identifying the vehicle which passed him eight blocks from the scene of the accident as plaintiff's vehicle was so inconclusive as to require that his testimony as to the speed of such vehicle in passing him be effectively erased from the minds of the jury as a prerequisite to a valid verdict.

On page 29 of an extensive annotation appearing in 46 A.L.R.2d 9, we find the following pertinent language:

'* * * [H]ow should a vehicle or driver observed at a remote point be identified as one involved in an accident so as to lay a sufficient basis for introduction of evidence as to the manner in which the vehicle was operated at the remote point? 'Identification need not be positive; it may be circumstantial. * * * But such evidence must be of such a nature as to remove it from the realm of mere speculation.' Myers v. State (1951) 93 Okla.Crim. 209, 226 P.2d 451.'

The New Jersey Supreme Court in a well-reasoned opinion in Miller v. Trans Oil Co., 1955, 18 N.J. 407, 113 A.2d 777, wherein the testimony as to the certainty of identification of the vehicle which passed the witness at a point three-quarters of a mile from the accident as the one involved in the accident was quite comparable to Carroll's testimony in this case, the problem under consideration is discussed as follows:

'The appellant in his brief with dramatic emphasis says the bell tolled by the jury did not have a clear sound. It was muffled by a palpable impediment in the purity of tone, and the fact that an unidentified black sedan threequarters of a mile away had a minute before the accident cut off Hollyer does not, without more, afford a basis for a rational inference that the plaintiff driving his car caused the collision with a tractor-trailer. Neither the question nor Hollyer's answer could have any possible legal relevancy unless and until it was...