Nash Miami Motors, Inc. v. Ellsworth, 60-265
| Decision Date | 11 May 1961 |
| Docket Number | No. 60-265,60-265 |
| Citation | 129 So.2d 704 |
| Parties | NASH MIAMI MOTORS, INC., a Florida corporation, and Tobie Wilson, Jr., Appellants, v. Roy S. ELLSWORTH, Appellee. |
| Court | Florida District Court of Appeals |
Dean, Adams, Fischer & Gautier, Miami, for appellants.
Talbot W. Trammell, Miami, for appellee.
Nash Miami Motors, Inc., was the owner and Tobie Wilson, Jr., was the driver of a motor vehicle which struck the plaintiff, Roy S. Ellsworth, who was a pedestrian. This appeal is from a final judgment for the plaintiff entered upon a jury verdict. The points presented are: 1) the court erred in refusing defendants' motion for directed verdict because the evidence proved the plaintiff was guilty of contributory negligence as a matter of law; 2) the court erred in instructing upon the doctrine of last clear chance because it was clearly inapplicable to the facts; 3) the court erred in allowing an investigating officer to testify, over defendants' objection, concerning a statement given him by the defendant-driver because it was a violation of his privilege given by the statute requiring a report of the accident. No error has been made to appear upon the first two points, but we reverse upon the third point and remand the cause for a new trial.
After the accident, officer McCracken, of the City of Miami police, arrived to investigate the accident. Defendant, Tobie Wilson, gave information to officer McCracken from which to prepare an accident report. Officer Fontana, a special accident investigator for the City of Miami Police, arrived at the scene of the accident while the investigation by officer McCracken was being conducted. Officer Fontana informed Mr. Wilson that he wanted to take his statement, and drove him to the police station for that purpose. At the station the defendant, Wilson, was informed:
* * *.'
Thereafter officer Fontana asked:
'Mr. Wilson, in your own words will you tell me exactly what took place?'
Wilson made his statement; it was transcribed and filed in the records of the police department. The statement was not used by investigating officer McCracken in the preparation of the report required to be filed upon each accident.
A portion of the statement given to officer Fontana was read into evidence over defendants' objection. In the portion read Wilson stated that immediately prior to the collision he was traveling between 30 and 35 miles per hour and that the towing hook on the front of the automobile he was driving obscured his view. At the trial the defendant testified that he was traveling at approximately 25 miles per hour and that the towing hook did not obscure his view. The case before the jury was such that these conflicts may have been material.
Section 317.13, Fla.Stat., F.S.A., requires a driver of a vehicle involved in an...
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