Florida Power Corp. v. Smith

• Decision Date: 27 September 1967
• Docket Number: Nos. 7199,7200,s. 7199
• Citation: 202 So.2d 872
• Parties: FLORIDA POWER CORPORATION, a Florida Corporation, Appellant. v. Jenethel SMITH, a widow, Appellee. FLORIDA POWER CORPORATION, a Florida Corporation, Appellant. v. Rosalie Bernedette FLEMING, a widow, Appellee.
• Court: Florida District Court of Appeals

Page 872

202 So.2d 872

FLORIDA POWER CORPORATION, a Florida Corporation, Appellant. v. Jenethel SMITH, a widow, Appellee.

FLORIDA POWER CORPORATION, a Florida Corporation, Appellant. v. Rosalie Bernedette FLEMING, a widow, Appellee.

Nos. 7199, 7200.

District Court of Appeal of Florida, Second District.

Sept. 27, 1967.

Mann, Harrison, Mann & Rowe, St. Petersburg, for appellant.

Muscarella & Perenich, Clearwater, for appellees.

PIERCE, Judge.

The above two wrongful death cases arising out of the same accident, although filed separately in the Court below, were consolidated for trial, and because they both involve identical contentions here, they will be disposed of in this single opinion. Appellant Florida Power Corporation, defendant below in each case, appeals from identical orders entered by the trial Judge granting motions for a new trial to the plaintiffs below after jury verdicts for defendant corporation. (Whenever the cases or the plaintiffs are herein referred to in the singular, it will be understood as applying to both cases and both plaintiffs).

The suits were filed in the Pinellas County Circuit Court by Rosalie Bernedette Fleming and Jenethel Smith, seeking damages in the deaths of their respective husbands, Don Fleming and Walter Smith, employed as foreman and laborer respectively by Hubbard Construction Company, while engaged in unloading metal pipe on June 4, 1963, on Fair Villa Road near Orlando, Orange County, Florida. Overhead electrical distribution lines of Florida Power Corporation ran parallel with the roadway. The sections of metal pipe were being hoisted from a delivery truck to the ground by means of a crane owned and operated by Hubbard. Fleming and Smith were standing on the ground between the crane and the truck, engaged in guiding the pipe from the truck to the ground where the pipe was to be placed. While so engaged in guiding the second unit of pipe being unloaded that day the crane's wire or cable came in contact up in the air with the electric lines of Florida Power, and the deadly electric energy was thereupon transmitted to the wire or cable, thence to the metal pipe, and finally to plaintiffs' decedents, who were standing on the ground as aforesaid.

The foregoing facts generally evolved from the pleadings and proofs at the trial. The two cases were tried together upon the basic issues of the alleged negligence of Florida Power, the negligence of decedents, the negligence of Hubbard Construction Company, and the negligence of the operator of the crane, jointly and severally, as being the proximate cause of the accident. After an eight day trial, the jury returned a verdict in each case for the defendant, Florida Power Corporation. Motion for new trial was filed by plaintiff in each case. The trial Court thereupon, by separate orders, granted the motions for new trial upon two stated grounds, as follows, viz:

'(1) That juror, ROBERT O. WEAVER, while qualifying to serve as a juror, misled the Court and counsel herein to the prejudice of the plaintiff both upon interrogation by the Court outside of the hearing of counsel and upon his voir dire examination.

'(2) The Court committed prejudicial error in admitting over Plaintiff's objections the Florida Industrial Commission Rule concerning notice to utilities, which materially and substantially altered the common law duty owed by the defendant to the plaintiff.'

We are impelled to hold the eminent trial Judge in error as to each of the aforesaid two grounds relied upon, but before discussing them severally herein, we will make one observation pertinent to both grounds.

As this Court stated in Brown v. Fawcett Publications, Inc., Fla.App.1967, 196 So.2d 465, '* * * (w)e are cognizant 'a stronger showing is required to reverse an order granting a new trial than one denying it', Mead v. Bentley, Fla.1952, 61 So.2d 428, but here, the point being one strictly of law uncontaminated with factual conflict, the area of discretion is drastically diminished if not entirely eliminated.' Like holdings were by this Court in Ewing v. Miller, Fla.App.1965, 172 So.2d 889, and the 1st District Court in Boutwell v. Bishop, Fla.App.1967, 194 So.2d 3. We are of the view that the grounds granting new trial in the instant cases present essential questions of law and therefore come within the purview of the cases cited, rather than the general rule of Mead v. Bentley.

I. As to Juror Weaver. At the inception of the trial, preparatory to questioning

the prospective jurors upon their voir dire, the trial Judge invited any of the talismen present who felt they might not be able to serve to approach the bench, whereupon one Robert O. Weaver went up and tendered to the Judge a paper which turned out to be a subpoena for Weaver to appear as a witness in another separate civil case set to be tried following the instant cases, known as the Vatella case, also against the Florida Power Corporation. Weaver thought that his being subpoenaed in the Vatella case might conflict with his being a juror in the instant cases. The Judge explained to him that there would be no conflict of interest on Weaver's part and also that the two trials, both set before the same Judge, could not overlap.

Later, during interrogation of the veniremen on their voir dire, Mr. Weaver was called for questioning. The trial Judge asked him the stereotyped initial question if he knew of any reason why he could not fairly try the case, and Weaver replied:

'Not offhand, Your Honor, other than that fact that there was a question brought up to you, the fact that did I know an attorney. Well, I do not know an attorney in here, personally, but I know of him. Whether that has any bearing upon it--.'

Whereupon the Judge called respective counsel to the bench and the following discussion was had out of hearing of the prospective jurors:

'THE COURT: This is a very unusual situation, fellows. Mr. Weaver--you know I have two trials in a row here against Florida Power, this one and next week I am scheduled to try the Vatella case. Well, Mr. Vatella was employed with this tree-clearing company, Florida Tree Service. Mr. Weaver used to be a supervisor of Florida Tree Service and so he is no longer--he has received, from plaintiff's counsel, Nichols, Gaither, Green and all a subpoena duces tecum which he showed me this morning. He is to report here for next week's case and wondered if he were chosen for this case, he was wondering if it ran into next week would he be able to serve and I explained that we can't be trying both cases, can't start that one until we finish one.

'MR. MANN: He can be dismissed for cause.

'THE COURT: I don't know as to cause.

'MR. MANN: He was subpoenaed by plaintiff's counsel against the Power Company for the following Power case.

'THE COURT: I know. The subpoena merely was because he was custodian of records, the supervisor and I think it has to do with time worked and so forth. He wasn't at the scene. He was merely an office employee in charge of records and that is what the subpoena duces tecum is for, for him to bring records, such as he has, for the purpose of identifying them and as evidence of the work and times and so forth.

'MR. MANN: I would like to move the Court to excuse him for cause.

'THE COURT: Well, for cause? He said he wouldn't--he said he has no interest in the case.

'MR. PERENICH: Judge, unless it is shown he is going to be prejudiced I think he should be permitted to serve on the Jury.

'THE COURT: That is true.

'MR. PERENICH: Let's see what he says.

'THE COURT: I asked him if he knew counsel for either party and he doesn't. He doesn't know you are representing Florida Power in the next case.

'MR. MANN: I see.

'THE COURT: He doesn't know that.

'MR. MUSCARELLA: He indicated he knew somebody.

'THE COURT: Neither of these but he knows--he doesn't know any of you people, any of you.

'MR. MANN: Do you feel he should be excused if there is a likelihood we might go over?

'THE COURT: I don't see why, for cause. He has no interest.

'MR. MANN: For cause on the grounds there is a great likelihood--(interrupted).

'THE COURT: We can't start the next case until this one is finished.'

The questioning of Weaver was then resumed in open Court, with both respective counsel and also the trial Judge participating. During such examination Weaver, in answer to various questions by respective counsel, stated in effect: that he had been subpoenaed in the ensuing Vatella case, not as a witness to the accident, but merely to bring certain formal records to Court; that he was not acquainted with any of defense counsel but on at least one occasion had been to the office of plaintiffs' counsel to give a deposition in the Vatella case; that he knew some of the employees of Florida Power; that he had previously worked for Florida Forestry Corporation engaged in line clearance or trimming of trees, and which on occasions had been sub-contractor with Florida Power; that at the time of the instant trial he was a field buyer and supervisor in the lawn and garden department of Grant Company; that years before he had been self-employed in the nursery and tree surgery business in Pittsburg; and that he had had no connection with Florida Forestry for about five years previously.

Several times during the interrogation Weaver affirmed his impartiality as between the parties. During the questioning counsel for Florida Power suggested that Weaver 'be dismissed for cause' by reason of his being subpoenaed by plaintiffs' counsel as a witness in the succeeding Vatella case, which suggestion was denied by the Court because Weaver 'was merely an office employee in charge of records and that is what the subpoena duces tecum is for, for him to bring records.' Florida Power counsel then formally moved that Weaver be excused 'for cause', which the Court denied. Mr. Weaver was on the panel that was finally accepted by counsel for all parties in the two consolidated cases.

One of the grounds...