Herring v. Eiland

• Decision Date: 20 May 1955
• Citation: 81 So.2d 645
• Parties: Elsie I. HERRING, an incompetent, and Sidney M. Lippmann, as the Guardian of her property, Appellants, v. Wilber T. EILAND, Appellee.
• Court: Florida Supreme Court

Page 645

81 So.2d 645

Elsie I. HERRING, an incompetent, and Sidney M. Lippmann, as the Guardian of her property, Appellants, v. Wilber T. EILAND, Appellee.

Supreme Court of Florida, Division A.

May 20, 1955.

Rehearing Denied June 20, 1955.

Sidney M. Lippmann, Orlando, for appellants.

George H. Hollod, Jacksonville, of Pleus, Edwards & Rush, Orlando, for appellee.

SEBRING, Justice.

The plaintiff below has appealed from a final summary judgment entered in favor of the defendant on motion for summary judgment.

The action arose out of an automobile accident which occurred when the vehicle in which the plaintiff Elsie Herring and her husband were riding as passengers was driven by the defendant into a concrete abutment of a bridge on the highway. As the result of the accident the husband was killed and Elsie Herring was injured to such an extent that she was thereafter declared incompetent.

The complaint filed by the guardian of the incompetent alleged, in substance, that the accident was caused by the negligence of the defendant in driving, in the nighttime, at an excessive rate of speed while he 'was under the influence of liquor and could not control the said motor vehicle * * * (and) fell asleep directly before the said impact and lost control of said motor vehicle.'

After the complaint had been filed, the plaintiff took the deposition of the defendant's wife, who was an occupant of the car at the time of the accident. She testified that on the evening before the accident about one and a half pints of liquor were drunk at her home, that no drinking occurred on the trip the following morning, that she was asleep at the time of the accident and could give no information as to its cause. The plaintiff also took the deposition of the defendant, who testified, in substance, that the parties and their respective spouses had played cards, with accompanying social drinking, throughout the previous evening and had started out about 2 o'clock in the morning on a fishing expedition to Tampa; that while driving 40 or 45 miles an hour around a curve through intermittent fog he pulled too far to the right and struck the concrete abutment of a bridge while attempting to avoid an oncoming car which appeared to be on the wrong side of the road; that at and prior to the time of the accident his wife and Elsie Herring were fast asleep in the car.

After the depositions had been taken, the defendant moved for a summary final judgment in his favor on the pleadings and depositions, on the ground that the complaint presented no genuine issue as to any material fact and that the defendant was entitled to judgment as a matter of law. Upon consideration of the motion, the pleadings, and the depositions, the trial court granted a summary final judgment in favor of the defendant and this appeal followed.

It is contended by the plaintiff that the trial court committed reversible error when it considered the contents of the depositions in arriving at its conclusion that the motion for summary judgment should be granted. It is asserted by the plaintiff that under section 90.05, Florida Statutes, F.S.A., relating to transactions or communications between a witness and a person insane or lunatic, the answers given by the defendant in his deposition related to 'transactions' with the incompetent plaintiff, and that the bar of this statute was not waived merely by the plaintiff's having taken the deposition of the defendant for discovery purposes, and would not be waived unless and until the plaintiff elected to introduce such deposition in evidence at the trial of the issues.

We cannot agree that the depositions were not a proper subject for consideration by the trial court. The answers of the defendant in his deposition were not with reference to a 'transaction' with the incompetent, as that term is used in section 90.05, supra, 3 Jones Evid., section 793, but dealt with the defendant's activities during the course of the evening and his actions and the speed and movement of his car immediately before the accident. These were, in our opinion, independent facts, not a part of any transaction between the defendant and Elsie Herring and consequently not subject to the bar of the statute. Kilmer v. Gustason, 5 Cir., 211 F.2d 781; U.S.A.C. Transport, Inc., v. Corley, 5 Cir., 202 F.2d 8.

But if we assume, for the sake of argument only, that the defendant's deposition was susceptible in part to the objection urged by the plaintiff, the same could not be said as to the answers given by the wife of the defendant in her deposition. Indeed the plaintiff does not on this appeal question the admissibility of her testimony. Cf. Madison v. Robinson, 95 Fla. 321, 116 So. 31; Fields v. Fields, 140 Fla. 269, 191 So. 512. The only matters which it can possibly be contended might come within the bar of the statute are those to which the wife also testified, and the answers in her deposition, without consideration of her husband's corroborating statements, plainly showed either that the defendant had not been drinking excessively prior to the time the parties set out on their trip, or that to whatever extent he had consumed liquor or failed to obtain proper rest, these facts were known to Elsie Herring, who thereafter, without warning or objection, embarked upon the expedition and slept throughout the trip, and consequently, by assuming the risks of the journey, was guilty of contributory negligence which would bar recovery. Henley v. Carter, Fla., 63 So.2d 192; Crenshaw Bros. Produce Co. v. Harper, 142 Fla. 27, 194 So. 353.

At the hearing on the motion for summary judgment the plaintiff did not present affidavits in support of the genuineness of the complaint, or affidavits in opposition to the motion showing that the plaintiff could not 'for reasons stated present by affidavit facts essential to justify his opposition.' See Rule 1.36(f), Florida Rules of Civil Procedure, F.S.A., Vol. 30. Therefore, all the trial court had before it at the hearing were the pleadings in the cause and the depositions of the...