Florida Motor Lines Corp. v. Barry
| Decision Date | 08 November 1946 |
| Citation | 27 So.2d 753,158 Fla. 123 |
| Parties | FLORIDA MOTOR LINES CORPORATION v. BARRY. |
| Court | Florida Supreme Court |
Rehearing Denied Nov. 29, 1946.
Appeal from Circuit Court, Dade County; Stanley Milledge, judge.
Knight Underwood & Cullen, of Miami, for appellant.
Perry A Nichols, of Miami, for appellee.
On September 28 1944, John R. Barry, appellee, was a passenger on appellant's motor bus from West Palm Beach, Florida, en route to Camp Murphy and, when about one mile north of June Beach Cottages on U. S. Highway No. 1 and traveling in a northerly direction, the bus collided with a truck then being driven in a southerly direction on the same highway. The plaintiff below, John R. Barry, alleged in his declaration that he received permanent injuries as a proximate result of the collision due to the negligent and careless manner in which the motor bus was being operated at the time and place of the impact and injury.
The Florida Motor Lines Corporation filed a plea of not guilty to the declaration and on the day the case was called for trial through counsel in the Court below admitted liability on its part. The language of counsel is:
lips, who are better in position to tell you the facts than we are. * * * Gentlemen, with this frank statement to you, we ask your attention to these witnesses that come here. I appreciate the kindness of counsel in asking your consideration of our side of the case with equal part with his. That is what you will be called upon here to determine. You are holding us in your hands. You can do with us as you will.
'The Court: You have already stated quite plainly, and I don't suppose there is any need for me to say further that the defendant admits liability, and the only issue for the jury is the extent of the damages.
'Mr. Knight: That is right; and we say they must find a verdict in some amount for the plaintiff.'
The record discloses a verdict and judgment for the plaintiff below in the sum of $20,000. In this Court, by brief and oral argument of counsel, it is contended that the judgment is excessive by some $10,000 or $12,000. In other words, the verdict and judgment as reflected by the testimony in the record should stand approved at a sum ranging from $7,500 to $10,000 and for no greater amount. When the case was on trial below it is argued that incidents, errors and irregularities occurred reasonably calculated to influence the minds of the jury in favor of the plaintiff and to the detriment of the appellant, thereby accounting for the excessiveness of the verdict and judgment. These alleged errors are the basis of nine questions posed and relied upon here for a reversal of the judgment appealed from.
Counsel for the appellant moved the court to enter an order of mistrial because of the following incident which developed during the trial:
'Mr. Nichols: Now did he make any complaint at all about having nausea or loss of appetite?
'Mr. Knight: I submit the doctor has answered that, both to Mr. Nichols and myself. I asked him to repeat it over again and there has been no testimony of that kind.
'Mr. Nichols: If there hasn't been, then let's see if there is any now?
'Mr. Knight: It is suggestive.
'The Court: I don't think you need to imply that Doctor Vogt is going to give a false answer just because counsel suggested it.
'Mr. Knight: I don't in the least, Your Honor; but the question is nevertheless leading and is suggestive of the answer.
'The Court: Do you think that because this question is leading that this witness is apt to give an incorrect answer:
'Mr. Knight: No, Your Honor----
'The Court: 'Then why are we so concerned with leading questions?
'Mr. Knight: I haven't insinuated it, nor given Your Honor any basis for such a remark; and I ask that you give consideration to me in this case for a slight amount, please sir.
'The Court: Do you remember the question, Doctor Vogt?'
The trial court denied the motion for a mistrial and presented here by this ruling are two questions: (a) were the questions as propounded so leading and suggestive as to constitute error; and (b) was the remark of the trial court, supra, when ruling on the objection interposed, prejudicial to the appellant--the remark being: 'The Court: 'Do you think that because this question is leading that this witness (Dr. A. F. Vogt) is apt to give an incorrect answer?'' Let us concede arguendo that the question perhaps was leading, can it be said that error resulted to the appellant from the answer of the witness? We cannot appreciate the logic on which the objection is based. We have held that a leading question is one that points out the desired answer and not one that calls for a simple affirmative or negative answer. Coogler v. Rhodes, 38 Fla. 240, 21 So. 109, 56 Am.St.Rep. 170.
Considering the verdict, together with the extent of the injuries to the plaintiff, we are not able to conclude that it is likely and probable that the quoted remarks of the trial judge affected the verdict but in this respect consider it appropriate to cite the following:
'* * * This includes remarks to counsel touching the management of the case and reflecting on their conduct, as well as those touching the character of the witnesses, and the value of their testimony.' 53 Am.Jur. 75, Sec. 76.
'Remarks to or Respecting Attorneys.--A trial judge may not compliment one attorney at the expense of the other or on the other hand use language which tends to bring an attorney into contempt before the jury.' 53 Am.Jur....
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Johnson v. Canteen Corp., 87-338
...way influenced by his contact with Dr. Hutson. See Steinhorst v. State, 412 So.2d 332, 336-37 (Fla.1982); Florida Motor Lines Corp. v. Barry, 158 Fla. 123, 27 So.2d 753, 756 (Fla.1946); Baker v. Air-Kaman of Jacksonville, Inc., 510 So.2d 1222 (Fla. 1st DCA Because none of the points on appe......
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Happ v. State
...long held that a question is not necessarily leading simply because it calls for a "yes" or "no" answer. Fla. Motor Lines Corp. v. Barry, 158 Fla. 123, 27 So.2d 753, 756 (1946). Instead, a question is leading when it points out the desired answer. Id. In respect to those questions which are......
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Skelton v. Beall, 60-654
...can and should be performed effectively without inflicting unnecessary damage to a party's cause. See Florida Motor Lines Corporation v. Barry, 158 Fla. 123, 27 So.2d 753, 756; Cone v. Cone, Fla.1953, 68 So.2d 886; Giglio v. Valdez, Fla.App.1959, 114 So.2d 305; In re Parkside Housing Projec......
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Porter v. State, 77-2615
...the reply desired by counsel that such a reply is likely to be given irrespective of an actual memory."); Florida Motor Lines Corporation v. Barry, 158 Fla. 123, 27 So.2d 753 (1946). In a case closely on point, 4 the New Jersey Supreme Court determined that the direct examination question, ......
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Witness questioning and answering
...a ‘yes’ or ‘no’ answer. Instead, a question is leading when it points out the desired answer.” Quoting Fla. Motor Lines Corp. v. Barry, 158 Fla. 123, 27 So.2d 753, 756 (1946). Happ v. State , 922 So.2d 182 (Fla. 2005). Moore v. Gillett In the context of a civil lawsuit, leading questions do......