International Union of Operating Engineers, Local 675 v. Kinder

• Decision Date: 16 January 1991
• Docket Number: 88-1819,88-1933 and 88-2692,Nos. 88-1452,s. 88-1452
• Parties: 16 Fla. L. Weekly 181 INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 675, Appellant/Cross Appellee, v. David Ray KINDER, Appellee/Cross Appellant.
• Court: Florida District Court of Appeals

Page 385

573 So.2d 385

16 Fla. L. Weekly 181

INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 675, Appellant/Cross Appellee, v. David Ray KINDER, Appellee/Cross Appellant.

Nos. 88-1452, 88-1819, 88-1933 and 88-2692.

District Court of Appeal of Florida Fourth District.

Jan. 16, 1991.

Rehearing Denied Feb. 21, 1991.

Melanie G. May of Bunnell & Woulfe, P.A., Fort Lauderdale, and John Beranek of Aurell, Radey, Hinkle & Thomas, Tallahassee, for appellant/cross appellee.

Carolyn A. Pickard and James M. McCann, Jr., of Mershon, Sawyer, Johnston, Dunwody & Cole, Miami, for appellee/cross appellant.

PER CURIAM.

The International Union of Operating Engineers, Local 675 (Union), appeals a jury verdict and judgment in favor of appellee Kinder, for personal injuries received by Kinder following a beating by the Lowrie brothers. Also appealed are a cost judgment and post-trial order denying an interview of the jurors under Florida Rule of Civil Procedure 1.431(g). Appellant has presented one meritorious point on appeal which would warrant reversal and remand for further proceedings by the trial court.

Appellant Union assigns as error the trial court's refusal of appellant's post-trial motion to interview the jurors. This motion appeared to be prompted by two factors. First, during the course of the jury's deliberations, it appears that a courthouse custodian confronted the jurors in a hallway, and exhorted the jurors to give the appellee, Kinder, a large award because he was beaten up by unionizers. The second ground was based on an article that appeared in the "Broward Review" some two months following the verdict. In that article, one of the jurors, Mr. Fallon, was quoted as saying, "He served as a tempering influence on a jury that included people with a warped view of unions as secretive, violent institutions." As far as the timeliness of the motion to interview jurors, it could be argued that the motion could have been brought within the ten-day time limitation envisioned by Florida Rule of Civil Procedure 1.431(g) [now 1.431(h) ], based solely on the custodian's remarks. However, the trial court had conducted a voir dire of the jurors, and apparently was satisfied that they could continue to be fair. Clearly, the newspaper article, as an additional basis for seeking to interview the jurors, could not be alleged as a ground until the article appeared. Considering the cumulative effect of these two factors and, in particular, juror Fallon's allegation of improper considerations by his fellow jurors, we believe this case presents one of the rare instances where a post-verdict interview of the jurors would have been correct. Such a result would be supported by our sister court's opinion in Snook v. Firestone Tire & Rubber Co., 485 So.2d 496 (Fla. 5th DCA 1986).

This is not to say that such an interview would necessarily lead to the granting of a new trial. That determination could not be made until after the interviews were completed, and the findings presented to the trial court. However, it is clear that from the appellant's perspective, the goal would be to obtain a new trial. Such a result would be consistent with the second district's holding in Skiles v. Ryder Truck Lines, Inc., 267 So.2d 379 (Fla. 2d DCA 1972), cert. denied, 275 So.2d 253 (Fla.1973).

We reject appellant's remaining claims of error on appeal as well as appellee's claim of error on cross appeal. While we find no reversible error in any of the other points raised by the parties, we specifically note upon review of the record, our conclusion that the evidence, although substantially circumstantial, was sufficient to sustain the jury's verdict. Cf. International Union of Operating Engineers v. Long, 362 So.2d 987 (Fla. 3d DCA 1978).

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THE FOREGOING.

WALDEN, J., concurs.

ANSTEAD, J., concurs specially with opinion.

POLEN, J., dissents with opinion.

ANSTEAD, Judge, specially concurring.

I concur in the majority's opinion on the jury interview issue, and write separately to explain my view as to the sufficiency of the evidence to demonstrate an agency relationship between the union and Donnie Lowrie, the union organizer who, with his brother, beat up Kinder shortly after he refused to participate in activities to organize a union at his place of employment.

The evidence is undisputed that Lowrie was authorized by the union to attempt to organize the workers at Campbell Crane Company. Lowrie often accompanied union leaders in picketing and other union activities at Campbell. A Campbell employee testified to Lowrie's reference to the Kinder beating in the presence of other union organizers during one of the union-organized activities. Lowrie was...