Foremost Dairies, Inc., of South v. Cutler

• Decision Date: 27 June 1968
• Docket Number: No. 1503,1503
• Citation: Foremost Dairies, Inc., of South v. Cutler, 212 So.2d 37 (Fla. App. 1968)
• Parties: FOREMOST DAIRIES, INC., OF the SOUTH and Woodrow Strickland, Appellants, v. Dorothy CUTLER, Appellee.
• Court: Florida District Court of Appeals

Page 37

212 So.2d 37

FOREMOST DAIRIES, INC., OF the SOUTH and Woodrow Strickland, Appellants, v.Dorothy CUTLER, Appellee.

No. 1503.

District Court of Appeal of Florida, Fourth District.

June 27, 1968.

Leon H. Handley and John H. Ward of Gurney, Gurney & Handley, Orlando, for appellants.

Roe H. Wilkins of Maguire, Voorhis & Wells, Orlando, for appellee.

CROSS, Judge.

The appellants-defendants, Foremost Dairies, Inc., of the South and Woodrow Strickland, appeal an order granting the appellee-plaintiff, Dorothy Cutler, a new trial in a wrongful death action.We affirm.

The deceased, Vail Lambert, a minor child of the plaintiff, was riding his motorbike in a westerly direction on State Highway 434, which runs east and west in Seminole County.At the entrance ramp of United States Interstate Highway 4, which basically runs in a north-south direction, plaintiff's deceased collided with defendant vehicle causing serious bodily injury resulting in his death.The accident occurred during the early part of an evening.

During the course of the trial conflicting testimony arose as to whether or not Vail Lambert was driving his motorbike with or without a headlight in operating condition.

The deceased's brother, Paul Lambert, testified as a witness for the plaintiff.His testimony was limited to the general association which he had had with his deceased brother, Vail Lambert, and the relationship between the mother and the deceased brother and the services rendered by the deceased brother to the mother.He did not as a witness for the plaintiff testify in any regard concerning the accident.

Counsel for the defendants on cross-examination of the witness, Paul Lambert, attempted to elicit from the witness a statement that he allegedly had made to the officer investigating the accident.On objection by plaintiff's counsel this was excluded by the court as not being within the scope of direct examination.

Thereafter, Paul Lambert was called by the defendants as their witness, and on direct examination was asked whether or not he had made a statement to the investigating officer to the effect that the headlight on Vail Lambert's motorbike was not in working condition at the time of the accident, to which he answered that he had not.

Following Paul Lambert's testimony, the defendants called the investigating officer, who was allowed to testify over objection of plaintiff's counsel, and for the purpose of impeaching the testimony given by Paul Lambert, that Paul Lambert had told him on the night of the accident that the motorbike did not have a working headlight.

The case ultimately went to the jury, who returned a verdict in favor of the defendants.The trial court vacated and set aside the verdict on plaintiff's motion and granted her a new trial.Hence this appeal.

The question for our determination is whether or not the trial court erred in granting plaintiff's motion for a new trial.

The new trial was granted on the basis of what the trial court considered substantial error rather than mere harmless error in permitting the defendants to put into evidence under the guise of impeachment of a witness testimony which was otherwise inadmissible.Initially the trial court permitted the impeachment on the view that the witness, Paul Lambert, by virtue of family relationship and possible ultimate financial interest in the outcome, could be considered an adverse party under Rule 1.450(a), F.R.C.P., 30 F.S.A.The testimony, which was thus admitted into evidence, was on a vital question--whether the motorbike headlight was or was not in working condition at the time of the accident.

We could entirely justify our affirmance on the broad discretion ruling of Cloud v. Fallis, Fla.1959, 110 So.2d 669, in which event no useful purpose would be served by preparing and filing a written opinion.However we deem it desirable to clear up some of the confusion existing in the law concerning the right to impeach one's own witness.In order to clear up this confusion there is a clear distinction that must be kept in mind between an adverse party and an adverse witness.

In Johnson v. State, Fla.App.1965, 178 So.2d 724, in discussingF.S. 1965, Section 90.09, F.S.A. which prohibits a party producing a witness from impeaching his credibility by general evidence of bad character, but permits impeachment by other evidence or by prior inconsistent statements in case the witness proves adverse, stated as follows:

'* * * we adopt the meaning of 'adverse' as 'giving evidence that is prejudicial to the party producing the witness'.'

An adverse party would by simple definition simply be a party to the litigation who had an adverse interest in...