Haverley v. Clann, 5887
| Citation | 196 So.2d 38 |
| Decision Date | 04 January 1967 |
| Docket Number | No. 5887,5887 |
| Parties | Foster W. HAVERLEY, Appellant, v. Chester CLANN and Ada Clann, husband and wife, Appellees. |
| Court | Court of Appeal of Florida (US) |
Gardner Beckett, of Nelson, Beckett & Nelson, Sam H. Mann, Jr., of Mann, Harrison, Mann & Rowe, St. Petersburg, Charlie Luckie, Jr., of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellant.
E. B. Rood, Tampa, for appellees.
This is an appeal from a final judgment entered upon a jury verdict rendered after trial upon a personal injury-negligence suit in favor of appellees (plaintiffs below) and against appellant (defendant below). We will hereafter refer to the parties as they were in the Court below.
On September 7, 1966, we affirmed the judgment appealed. Thereafter, defendant filed timely petition for rehearing, and upon consideration thereof and also upon more extensive consideration of the entire record before us, we are convinced that we should recede from such affirmance and should reverse the judgment appealed and remand the cause for a new trial. This change of opinion on our part is brought about by our present settled conviction that the trial Court was in fundamental error in admitting into evidence over objection the deposition of the witness LaDon Moulton, upon the showing or rather lack of it made for introduction of the deposition.
On December 31, 1961, plaintiffs Clann owned and occupied a Ford station wagon driven by the husband in a southerly direction on U.S. Highway 19 in Pasco County. Just in front of their station wagon was a Rambler sedan owned and operated by defendant Haverley going in the same southerly direction. The two lane highway runs generally north and south and at the place of the accident it curves slightly to the east. At this point on the highway, a northbound Chevrolet operated by one Loren Braley and the Rambler driven by Haverley collided. The Chevrolet continued on northward and struck head-on with the southbound Ford station wagon of plaintiffs. The Ford and the Chevrolet came to rest on the highway with the Ford facing south and the Chevrolet, to the Ford's left, facing generally to the southwest. Haverley's Rambler car, after the impact with the Chevrolet, proceeded across the highway and finally came to rest beyond the east shoulder of the highway headed in a southeasterly direction. There was no contact between the station wagon of the Clanns and the Rambler automobile of Haverley. The testimony as a whole at the trial developed an extremely close question of negligence and also proximate cause. Many other details occurring before, during, and immediately after the two successive collisions were brought out in the evidence, but the foregoing are the basic, rudimentary facts of the accident.
At the very outset of the trial, before any witness had testified, plaintiffs' counsel procured introduction into evidence of the deposition of one LaDon Moulton taken in Florida some fourteen months before trial. When the deposition was first offered in evidence there ensued a somewhat extended colloquy between the trial Judge and respective counsel, which, because of its dispositive effect on this appeal, we quote in full as taken from the record here:
MR. ROOD:
'Your Honor, as the next witness we would like to read the deposition of Mr LaDon Moulton, taken here in Florida. He is in the armed forces and is outside the State. I would like for you to tell the jury what a deposition is before it is read.
(THEREUPON, following a discussion at the bench, the jury was excused from the courtroom.)
The alleged details of the accident, as narrated by Moulton in his deposition, were so harmful to defendant's case that if there was error in admitting the deposition and allowing it to go to the jury, it was reversible. We have italicized the passages which bear directly upon the vital and crucial point of admissibility.
The ground rules governing introduction of the deposition are found in Rule 1.21(a), (b), and (c), of the Florida Rules of Civil Procedure, Volume 30, F.S.A. These subsections, which pinpoint the conditions making such a deposition available, are as follows:
'(a) When depositions may be taken. Any party may take the deposition of any person, including a party, by deposition upon oral examination or written interrogatories for the purpose of discovery or for use as evidence in the action, or for both purposes. After commencement of the action the deposition may be taken without leave of court, except that leave, granted with or without notice, must be obtained if notice of the taking is served by the plaintiff within twenty (20) days after commencement of the action. The attendance of witnesses may be compelled by the use of subpoenas as provided by law. The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes.
(d) Use of Depositions. At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence, may be used against any party who was present or represented at the taking of the deposition or who had due notice thereof, in accordance with any one of the following provisions:
(3) The deposition of a witness, whether or not a party, may...
To continue reading
Request your trial
-
State v. Schopp, 84061
...9.020(g)(1) (a decision is not rendered for appellate purposes until disposition of motion for rehearing); Cf. Haverley v. Clann, 196 So.2d 38 (Fla. 2d DCA 1967) (notice of dismissal due to settlement would have been timely filed under rule providing for the filing of such notice "before a ......
-
Jenkins v. State
...without more, is simply insufficient. See Colonnades, Inc. v. Vance Baldwin, Inc., 318 So.2d 515, 517 (Fla. 4th DCA 1975) ("In Haverley v. Clann, supra, it was held that the trial court did abuse its discretion in admitting the deposition into evidence, not because the predicate was found i......
-
Dinter v. Brewer, 81-1891
...contained in the deposition, see Colonnades, Inc. v. Vance Baldwin, Inc., 318 So.2d 515 (Fla. 4th DCA 1975); but see Haverley v. Clann, 196 So.2d 38 (Fla.2d DCA 1967); Weber v. Berry, 133 So.2d 327 (Fla.3d DCA 1959), the fact of agency or conspiracy must be established by proof independent ......
-
Fishman v. Liberty Associates, Inc.
...new trial. In so holding we have not overlooked the recent decision of the second district court of appeal in the case of Haverley v. Clann, Fla.App.1967, 196 So.2d 38, in which the view was expressed that the factual situation forming the basis for introduction of the deposition of a witne......