Hartstone Concrete Products Co. v. Ivancevich, 7255

• Decision Date: 09 June 1967
• Docket Number: No. 7255,7255
• Parties: HARTSTONE CONCRETE PRODUCTS COMPANY, Inc., a corporation, and George E. Berlin, Appellants, v. Mary IVANCEVICH, Appellee.
• Court: Florida District Court of Appeals

Page 234

200 So.2d 234

HARTSTONE CONCRETE PRODUCTS COMPANY, Inc., a corporation, and George E. Berlin, Appellants, v. Mary IVANCEVICH, Appellee.

No. 7255.

District Court of Appeal of Florida, Second District.

June 9, 1967.

Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellants.

E. B. Rood and McClain, Turbiville & Davis, Tampa, for appellee.

PER CURIAM.

As plaintiff in the trial court, appellee sought to recover compensatory damages from the appellants as defendants charging wrongful death of her husband as the result of an automobile accident. The parties will be designated here as they were in the court below. The jury found in favor of the plaintiff and she was awarded substantial damages. After the denial of defendants' motion for a new trial, final judgment was entered for plaintiff from which defendants have appealed.

The accident which gave rise to this cause of action occurred after dark on U.S. Highway 301 north of Riverview, Hillsborough County, Florida, at about 6:30 P.M., on December 14, 1964. The highway runs north and south and has two lanes of traffic, one for each direction of travel.

A concrete mixer truck owned by defendant Hartstone Concrete Products Company was being driven by its employee, defendant George E. Berlin, in a northerly direction on said highway. The decedent drove his 1962 Chevrolet Station Wagon into the rear of defendants' truck. After the accident the decedent's station wagon was still headed in a northerly direction in the north-bound lane of traffic. The front of the station wagon was damaged extensively and there was some damage to the rear of defendants' truck.

The principal issue made at the trial was whether defendants' truck was moving at the time the collision occurred between the truck and station wagon.

There were no eyewitnesses to the accident except the defendant driver, Berlin and he testified that he was proceeding north at a speed of 30 to 35 miles per hour and that he observed an automobile coming up fact behind him which ran into the rear of the truck he was driving. Roscoe Soape, who was sitting in a house trailer about 75 ft. from the highway, testified that he heard a short squeal and then a loud, dull noise. That he looked through the doorway and saw the headlights of the concrete mixer bobbing up and down. That the truck passed through the sector of his vision delineated by the doorway of the trailer. When asked if he could estimate the speed of the cement mixer at that time he testified:

'It would be a guess but I would say about 15 miles an hour but I didn't have much to base that estimate on because it didn't travel that far in front of me across that doorway to really tell.'

Over objection by defendants, two traffic experts testified for the plaintiff that in their opinions the concrete mixer truck was stationary at the time the collision occurred. The defendants attempted to call a physicist to impeach plaintiff's traffic experts. The physicist would testify that the formula used by plaintiff's experts would not compute the distance an overtaking vehicle would travel upon impact with a moving vehicle. The trial judge refused to permit the defendants to call the physicist because he was not listed on the pre-trial order.

The principal point pressed by the defendants on this appeal is that the lower court committed reversible error by refusing to allow them to call an expert witness to impeach plaintiff's experts even though he was not listed on the pre-trial order. We agree and reverse.

Before trial there was no indication whatsoever that plaintiff would contend that defendants' vehicle was stopped at the time of impact.

In the course of the trial plaintiff's two traffic experts, Delton Dollar and Dale Medsker, testified that in their opinions defendants' vehicle was stationary at the time of impact. It appears from a careful study of the record on appeal that the primary basis for the experts' opinions was that the decedent's vehicle stopped at the point of impact, whereas, this would not have occurred if the truck had been moving. Mr. Dollar gave a formula for computing the distance an overtaking vehicle would travel after rear-ending a vehicle moving in the same direction. Near the end of the first day of trial counsel for the defendants made known that he intended to call an expert of his choice, a physicist, the following day to impeach the validity of Dollar's formula and its ability to predict how far an overtaking vehicle will travel upon rearending a moving vehicle.

When the matter arose the following day this discussion took place:

'THE COURT: Well, we're bond by the list of witnesses that we have.

'MR. CLARK: Except rebuttal.

'THE COURT: You have no rebuttal, Mr. Clark.

'MR. CLARK: Well, Judge--

'THE COURT: Do you have a counterclaim here?

'MR. CLARK: Rebuttal in this sense: If a witness gets up there and makes a calculation during the course of the trial and he's in error, I can call in a witness without listing him. I take that position. To rebut it.

'MR. CLARK: Well, Judge, let me just tell you what I expect to prove by this witness: I expect to prove by this witness, who is a professor at the University of South Florida, that when Delton Dollar testified in response to a question regarding an automobile weighing 4,000 pounds going 60 miles an hour, hitting a vehicle weighing 24,000, pounds going 30 miles an hour, that the rear vehicle would travel 66 feet before it came to a stop.

'I asked Mr. Dollar to put his caliculations down on a sheet of paper so that we would know how he arrived at that result. And I had him sign it, Your Honor will recall. The witness I propose to call is Mr. L. A. Scott, who's head of a department at the University of South Florida, who will testify that by the formula which is set forth on that sheet of paper signed by Mr. Delton Dollar, you cannt arrive at any figure regarding how far the following vehicle would travel.'

The naming of plaintiff's expert witnesses in the pre-trial order which was in due course entered in the case did not give the defendants an absolute right to discover their opinions regarding the accident. Dade County, By and Through Board of County Com'rs v. Bosch, 133 So.2d 578 (3d DCA Fla.1961); Ford Motor Co. v. Havee, 123 So.2d 572 (3d DCA Fla.1960).

In Ford Motor Co. v. Havee, supra, the Court held that the analysis of the expert is privileged and not subject to discovery. By footnote, the Court noted a number of federal decisions supporting their holding. The Court went further, however, and said with respect to two contrary decisions:

'The basis for the holding in the preceeding two cases; viz., the analysis of the expert is not privileged is not followed in Florida and is contrary to the weight of...