Goodis v. Finkelstein, 64-654
| Decision Date | 27 April 1965 |
| Docket Number | No. 64-654,64-654 |
| Citation | 174 So.2d 600 |
| Parties | Frances S. GOODIS, Appellant, v. Sarah FINKELSTEIN and Moe Finkelstein, her husband, Appellees. |
| Court | Florida District Court of Appeals |
Fowler, White, Gillen, Humkey & Trenam and Henry Burnett, Miami, for appellant.
Charles H. Greenberg, Miami Beach, for appellees.
Before BARKDULL, C. J., and TILLMAN PEARSON and HENDRY, JJ.
The appellant, Frances S. Goodis, brings for review a final judgment based upon a jury verdict. She was the defendant in the trial court and the appellee, Sarah Finkelstein, was a plaintiff who was a guest passenger in Mrs. Goodis' car. The appellee, Sarah Finkelstein, was injured when the car struck a utility pole. Her action was based upon an allegation of gross negligence, and the determinative question here is the sufficiency of the evidence to support the jury's finding that gross negligence existed under the circumstances. We hold the evidence sufficient and affirm.
The issue of the existence of gross negligence upon a given series of events is primarily for the jury. The courts in defining the statutory term (See § 320.59 Fla.Stat., F.S.A.) have the problem of setting the extent beyond which the jury may not go in applying the jury's definition of the term. In our attempt to determine whether the jury has transgressed the established law in its application of the facts that it found, we must carefully state the facts in order to give the verdict the benefit of every reasonable view and inference which the jury may have intended.
At the time of the collision Mrs. Goodis was driving Sarah Finkelstein to visit a mutual friend. As they approached the intersection of Byron Avenue and 82nd Terrace on Miami Beach, the car went completely out of control, crossed the oncoming lane of traffic and collided with a utility pole located on the opposite side of the avenue resulting in serious injury to both occupants.
A Miami Beach police officer who came to render assistance and first aid, overheard heard Mrs. Goodis exclaim upon her regaining consciousness: Mrs. Goodis also testified at the trial that she had blacked-out at the time of the accident and did not recall the impact taking place.
For three and one-half years prior to the day she lost control of her car, Mrs. Goodis had suffered from hypertensive cardiovascular disease as a result of persistently elevated blood pressure. In 1959 she went to a physician complaining of headaches and that she 'felt a little dizzy once in awhile.' A medication was prescribed for her to take periodically to relieve her symptoms. Subsequently, occasionally in the morning she 'would feel a little light-headed, weak or faint' and would take the medication, stay at home and rest.
Mrs. Goodis had driven a car for eight years and not until this occasion did she experience any difficulty in driving because of her physical condition nor did her physician ever suggest or instruct her not to drive.
About one month before the day in question Mrs. Goodis was shopping in a department store in Miami when she became a 'little dizzy' and had to sit down. She did not lose consciousness but 'knew what was going on.' After about five minutes of rest and a drink of water she felt well enough to continue with her shopping. She did not mention the incident to her doctor.
On the morning that Mrs. Goodis lost control of her car she had taken the medication which was prescribed to relieve her high blood pressure but she indicated that she was feeling all right that morning.
The complaint alleged that the defendant was operating her vehicle with notice and knowledge that she might suddenly lose her power to control an automobile so as to constitute a conscious indifference to the rights and safety of others.
Appellant's first point concerns the admissibility of certain evidence; therefore, it must be discussed in order to determine the entirety of the evidence properly considered by the jury. It is contended that the statement made to the police officer was a part of an oral report made to a police officer having jurisdiction over the accident, and therefore privileged under § 317.171 Fla.Stat., F.S.A. 1
We hold that statement of appellant made at the scene of the collision was properly admitted in evidence by the trial judge, because it was not an 'accident report' within the meaning of the statute. The statement was admissible as a declaration which was a part of the res gestae and as an admission against interest. Foster v. Thorton, 125 Fla. 699, 170 So. 459 (1936); Bowen v. Keen, 154 Fla. 161, 17 So.2d 706 (1944). 13 Fla.Jur., Evidence § 272; Coons v. Pritchard, 69 Fla. 362, 68 So. 225, L.R.A.1915F, 558 (1915); Taylor v. Cory, Fla.1953, 53 So.2d 820, 13 Fla.Jur., Evidence § 218. We need not discuss these rules of evidence because the appellant does not question their application to this factual situation but relies upon the statutory exception. Nor do we discuss appellee's position that the statement was made to an officer who was not the 'investigating officer' because we think that position is untenable in view of the holdings in Ippolito v. Brener, Fla.1956, 89 So.2d 650, and Nash Miami Motors, Inc. v. Ellsworth, Fla.App.1961, 129 So.2d 704. This latter determination is not a part of our decision because we hold the statement admissible upon the ground that it was not an accident report.
Stevens v. Duke, Fla.1949, 42 So.2d 361, held that the oral statements made by a driver in answer to questions propounded to him by a Florida Highway Patrolman were privileged. It may reasonably be assumed (and for the purpose of this decision we do assume) that when the statements are made in the nature of a report to a police officer the actual propounding of questions by the officer is not an essential of the privilege to the communication. Accord Herbert v. Garner, Fla.1955, 78 So.2d 727.
To bring to notice the distinction we rely upon, we return to the cases which declared the basis of the exclusion provided by the statute. In Stevens v. Duke, supra, it was pointed out
'* * * When the circumstances under which the signed statement was procured are considered, we think that it would have constituted a violation of the statute to have held that though the written statement signed by the driver was privileged, the oral statements shown by the evidence to have formed the basis for the written statement do not enjoy such immunity.' [Emphasis supplied.]
In Herbert v. Garner, supra, the holding expressly included the circumstances under which the statement was given: 'the...
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