Locke v. Brown, 7455

• Citation: 194 So.2d 45
• Decision Date: 13 January 1967
• Docket Number: No. 7455,7455
• Parties: Johnny Sanford LOCKE, Appellant, v. Tom Fairfield BROWN, Appellee.
• Court: Florida District Court of Appeals

Page 45

194 So.2d 45

Johnny Sanford LOCKE, Appellant, v. Tom Fairfield BROWN, Appellee.

No. 7455.

District Court of Appeal of Florida, Second District.

Jan. 13, 1967.

Rehearing Denied Feb. 10, 1967.

McClain, Thompson, Turbiville, White & Davis, Tampa, for appellant.

David J. Kadyk and Charles W. Pittman, of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellee.

LILES, Judge.

This marks the second appearance of this case before this court. Subsequent to oral argument on the merits, it was determined that appellant was attempting to appeal an unsigned minute book entry. We therefore dismissed the appeal upon the authority of Egantoff v. Herring, 177 So.2d 260 (D.C.A.Fla.1965); aff'd, State ex rel. Herring v. Allen, 189 So.2d 363 (Fla.1966). See Locke v. Brown, 189 So.2d 833 (D.C.A.Fla.1966).

Thereafter the parties perfected a formal final judgment and brought this appeal from that judgment. Upon motion by appellant all of the appeal papers, record-on-appeal and briefs of the parties filed in Locke v Brown, supra, were treated as having been filed in the present case.

This was a rear-end collision, and the facts are fairly simple. Both parties were traveling in a westerly direction on the early morning of January 21, 1962, in the City of Tampa, Florida. It was alleged that appellee Brown cut in front of appellant Locke and that Locke ran into the rear end of Brown's car. Brown denied cutting in front of appellant's car, and the case went to trial which resulted in a jury verdict finding that neither party could recover.

Three points have been assigned for our consideration, the first being the admissibility of evidence showing appellant Locke's intemperate habits. It developed during the trial that Locke and another witness, one Phelps, had been in each other's company from about 1:00 a.m. to about 7:00 a.m. Phelps testified that Locke acted about the same at 7:00 a.m. as he had acted at 1:00 a.m. and that to his knowledge Locke had consumed no alcoholic beverages after 1:00 a.m. on the morning of the accident. In another place Phelps testified that he and Locke were in each other's company from 4:00 a.m. until 7:00 a.m. and that by Locke's demeanor he did not appear intoxicated.

Another witness, K. E. Morris, who came upon the scene of the collision after it occurred, testified that Locke did not appear to be intoxicated. Yet another witness, James Clark Correll, a Tampa police officer who came to the scene after the collision, testified that Locke's breath smelled of alcohol and in his opinion he was intoxicated. Officer George L. Hill testified that there was a very strong odor of alcohol about Locke and that he appeared drunk. Brown himself testified that Locke appeared to be intoxicated. The only eye witness to the accident, one Edward R. Watson, did not attend the trial but his deposition was used. He offered no testimony by way of deposition regarding the sobriety of Locke.

Following this testimony, appellee was successful in having evidence admitted bearing on Locke's previous intemperate habits, showing that appellant was hospitalized for alcoholism on June 26, 1959, June 16, 1961, September 8, 1961, October 3, 1961, November 25, 1961, December 26, 1961, on several occasions in 1962 and was treated for alcoholism following the accident. In fact, Locke himself admitted he would drink a fifth of whiskey a day before these hospitalizations.

In his brief, appellant Locke has made an eloquent argument against the admission of the above evidence. His primary theory seems to be that such evidence was inadmissible under the so-called 'eyewitness rule' which purportedly excludes evidence of habit where there are eyewitnesses to a person's actions. It appears, however, that this rule applies only in death cases and excludes evidence of a deceased's habits to show either care or negligence on his part. See 25A C.J.S. Death § 84; 20 Am.Jur., Evidence § 332. The able trial judge adjourned court after proffer of the questioned evidence had been made so that the question of its admissibility might be fully briefed and argued. Following argument, the trial judge admitted the evidence Not as direct evidence but for whatever corroborative effect it might have on the issue of Locke's intoxication at the time of the accident. There appear to be no reported Florida decisions on this point, and while there is some division of the authorities in other jurisdictions, we adopt the rule set out in 8 Am.Jur.2d, Automobiles & Highway Traffic § 941. This states in part that:

'It is generally held that in an action to recover for injuries sustained in a motor vehicle accident, evidence of the plaintiff's antecedent intemperate habits is not admissible, in the absence of additional proof, by way...