Hargrove v. CSX Transp., Inc., 93-00804
| Decision Date | 04 February 1994 |
| Docket Number | No. 93-00804,93-00804 |
| Parties | 19 Fla. L. Weekly D263 Wallace L. HARGROVE, Sr., Appellant, v. CSX TRANSPORTATION, INC., a corporation, Appellee. |
| Court | Florida District Court of Appeals |
The Beckham Firm, Jacksonville, and Joel D. Eaton of Podhurst, Orseck, Josefsberg, Eaton, Meadow, Olin & Perwin, P.A., Miami, for appellant.
A.J. Melkus and Dan Fleming of Melkus & Hunter, Tampa, for appellee.
Wallace L. Hargrove, Sr., the plaintiff below, seeks reversal of the trial court's order granting CSX Transportation's motion for a new trial. We reverse because CSX failed to preserve by objection the issue which it contends entitled it to a new trial.
During jury deliberations, it was discovered that the bailiff had delivered the court's copy of the jury instructions to the jury room. The instructions were delivered without the knowledge of the court and the parties. The court's copy reflected the changes made during the charge conference. The changes were made, with the consent of both parties, by written notations and lines drawn through sections to be deleted.
Upon discovering that the instructions were in the jury room, the parties agreed that the court should retrieve the instructions. It promptly did so. The record fails to disclose any objection by either side, nor does it show any request for a curative instruction or motion for mistrial. Subsequently, the jury sent out several questions. The trial court answered, with both parties' consent, by directing the jury to consider only issues on which evidence had been admitted or on which they had been instructed. Again there was no objection, request for a curative instruction or motion for mistrial.
Following a jury verdict for Hargrove, the trial court granted CSX's motion for a new trial. CSX based the motion on the delivery of the marked-up instructions to the jury room. It argued that the jury's questions indicated the jury was considering marked-through sections of the instructions. Two of the jury's four questions had asked if retirement or disability benefits would be affected by the verdict. CSX asserted that those questions showed the jury was considering "earnings lost in the past" which had been deleted from the damage instruction.
Hargrove argues that the order granting a new trial is erroneous because CSX failed to object until after the jury rendered its verdict. CSX did not argue to the trial court that this constituted fundamental error, nor did it brief that argument on appeal.
The Florida Supreme Court has held that timely objections are necessary to give a trial court the opportunity to correct errors. City of Orlando v. Birmingham, 539 So.2d 1133 (Fla.1989). That principle applies to new trial orders as well. County of Volusia v. Niles, 445 So.2d 1043, 1047 (Fla. 5th DCA 1984) (). Contemporaneous objections are required because they promote judicial economy. By correcting an error during trial, the court precludes the necessity for a new trial. At the same time, requiring a timely objection prevents a party from rolling the dice...
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