Lineberger v. Domino Canning Co.

• Decision Date: 24 July 1953
• Citation: 68 So.2d 357
• Parties: LINEBERGER v. DOMINO CANNING CO., Inc.
• Court: Florida Supreme Court

Page 357

68 So.2d 357

LINEBERGER v. DOMINO CANNING CO., Inc.

Supreme Court of Florida, en Banc.

July 24, 1953.

Rehearing Denied Oct. 1, 1953.

Rosin & Paderewski, Arcadia, for appellant.

Knowles & Kirk, Bradenton, for appellee.

HOBSON, Justice.

C. H. Lineberger, Jr., at the time of the unfortunate accident which gave rise to this litigation was 14 years of age. He sustained serious injuries when the bicycle which he was riding collided with a semi-trailer van owned by appellee and which was being operated by an employee of appellee in the course of his employment. The plight in which this adolescent finds himself, as a result of his grave if not permanent injuries and the loss of this law suit, has aroused the sympathy of every member of this Court. Nevertheless, this case is typically one properly to be determined by a jury. After having heard all of the evidence the jury rendered its verdict in favor of appellee (defendant below).

We have carefully considered arguments of counsel, the briefs filed by them and have diligently searched the transcript of the evidence to ascertain if harmful error was committed in the trial of this case.

The only question presented by counsel for appellant which we believe merits discussion is whether reversible error was committed by the trial judge when he allowed Clyde Gill, a police officer of the City of Bradenton, who was not an eyewitness to, but who investigated, the accident to testify to his conclusion as to who did what at the scene of the accident and to give his opinion that the led (appellant) was at fault.

Counsel for appellant cite many cases in support of their position that harmful error was committed when the policeman was allowed to testify as his conclusion and opinion that C. H. Lineberger, Jr. was at fault.

Counsel for appellee do not cite contra authorities but take the position that since no objection was made at the trial to such testimony upon the ground that the question 'Who do you believe was at fault?' called for the witness' conclusion or opinion, this Court can not consider this question propounded by counsel for appellant.

No objection was made to the quoted question, nor was any motion made to strike the answer thereto, said answer being one word 'Lineberger.'

This is not a criminal case wherein the judge might act sua sponte to protect some constitutional right or guarantee of an accused. The instant suit falls in the category of civil litigation in which no public rights are involved.

The learned Circuit Judge should not be held in error for failing to abandon his judicial role and adopt that of a protagonist. One of the cardinal rules of conduct for judicial officers is that they be impartial. The trial judge had no opportunity to sustain or overrule an objection to the question which elicited a prejudicial answer.

We are forced to agree with counsel for appellee that under our decisions we are not permitted to consider any grounds of objections to the admissibility of evidence except such as were specifically made in the trial court. Florida Cent. & P. R. Co. v. Foxworth, 41 Fla. 1, 25 So. 338; Cross v. Aby, 55 Fla. 311, 45 So. 820; Brown v. Bowie, 58 Fla. 199, 50 So. 637; Johnston v. State, 65 Fla. 492, 62 So. 655; Tampa Electric Co. v. Charles, 69 Fla. 27, 67 So. 572; Caldwell v. People's Bank of Sanford, 73 Fla. 1165, 75 So. 848; Atlantic Coast Line R. Co. v. Shouse, 83 Fla. 156, 91 So. 90; Peninsular Naval Stores Co. v. Mathers, 96 Fla. 620, 119 So. 333 and Metropolis Co. v. Croasdell, 145 Fla. 455, 199 So. 568.

It is true that before asking the police officer 'Who do you believe was at fault?', counsel for appellee asked the following preliminary question:

'Did you, after talking to C. H. Lineberger, Jr. take into consideration * * * and converse with other witnesses--and arrive at a conclusion, as a trained police officer, as to who did what at the scene of the accident?' (Italics supplied)

Counsel objected to this question in the following language:

'Objected to on the grounds that it is based on hearsay * * * conversation with others. The court has already ruled on conversations with others about 10 or 15 minutes...