P. & N. Inv. Corp. v. Rea, 3758
| Decision Date | 29 May 1963 |
| Docket Number | No. 3758,3758 |
| Citation | 153 So.2d 865 |
| Parties | P. & N. INVESTMENT CORPORATION, a Florida corporation, Appellant, v. Mark REA, Appellee. |
| Court | Florida District Court of Appeals |
Hansford D. Tyler, Jr., Miami, for appellant.
Berryhill, Avery & Law, Fort Lauderdale, for appellee.
Appellant, P. & N. Investment Corporation, suffered judgment in the sum of $872.00 and costs in a contract action brought by plaintiff Mark Rea who was a former employee of the dofendant in the latter's restaurant establishment. During the trial the plaintiff called the president of the defendant corporation to the stand without identifying him as an adverse witness under the rule. 1 The defendant's president testified on cross examination with reference to the term or duration of plaintiff's employment. This testimony conflicted with the testimony of the plaintiff who was seeking to recover an alleged balance of salary.
The defendant contends on appeal that the plaintiff, having failed to invoke the rule, was bound by the adverse testimony of defendant's president because it was given by plaintiff's own witness and rendered plaintiff's evidence insufficient to support the verdict. We deal with this question within the limits of a record that is partially stipulated and does not contain a complete transcript of the trial proceedings.
The plaintiff was employed as chef and manager of defendant's restaurant at an agreed salary of $100.00 per week. He voluntarily terminated his employment eighteen months after the restaurant opened, and he then sued for compensation according to alleged agreement at $100.00 per week for services performed during the nine weeks preceding he opening of the restaurant. During the nine weeks period, while the restaurant establishment was under construction, the plaintiff was paid $100.00. The defendant denied employing the plaintiff for the nine weeks period and asserted that the $100.00 payment was only an advance against salary to be earned after the opening of the restaurant for which the plaintiff was fully paid. The defendant counterclaimed for the $100.00.
The plaintiff's four witnesses included James G. Pace, president of the defendant corporation. The defendant called on only the aforesaid James G. Pace. The plaintiff testified that upon being employed at the salary of $100.00 per week he reported to a supervisor of defendant's project, and from April 5, 1961 busied himself every normal working day ordering supplies and helping set up the business through June 10, 1961, when the restaurant was completed and ready for opening. The plaintiff further testified that he asked the supervisor for his salary for the period in question and that a check was written but was somehow lost; that he, the plaintiff, thereupon went to the defendant's office, requested his salary from James G. Pace and received a check for $100.00; that although he later made demand for the balance, no further payment was made with reference to that particular perior of time.
James G. Pace stated that the plaintiff was very helpful throughout the period in question but that as far as he, the witness, was concerned the plaintiff was only 'hanging around' and was not on the payroll. He further stated that he had never received any request for payment of salary for said period and that the $100.00 was to be applied on plaintiff's salary accruing after the opening of the restaurant. He stated that he had made no effort to charge the $100.00 against future salary and had made no previous demand for repayment. The jury, as indicated, found for the plaintiff.
Did the testimony of defendant's president, being contrary to plaintiff's testimony, destroy plaintiff's otherwise prima facie case? In approaching this question, which we are constrained to answer in the negative, we first observe that neither our own research efforts nor citations by counsel have revealed any Florida decision apposite enough to be clearly controlling.
An opposing litigant or interested witness is generally disinclined to give testimony adverse to the side he favors. This points up the rationale of defendant's position that since the plaintiff saw fit to call an adversely interested party as his own witness and is willing to accept the fruits of possibly favorable answers, he should be bound by unfavorable answers absent invocation of the adverse witness rule. We must disagree, however, that such is the necessary implication of the adverse witness rule in all cases where it is not invoked.
A prime purpose of designating a witness adverse is to lay a predicate for leading questions on direct examination. Cf. Fla.Jur., Witnesses, §§ 157, 160. We cannot determine from the record here whether the defendant objected to its president being called as a witness by the plaintiff. It does appear that the testimony of the witness on direct examination did not conflict with plaintiff's prima facie case. As far as this witness was concerned, the issue of whether the plaintiff was to begin employment for pay on April 5, 1961, or at the time the restaurant opened was not touched upon until 'cross' examination by counsel for the defendant. The negative testimony which would lend color to the defendant's theory was not brought out by the plaintiff.
The president of the defendant was de facto adverse to the plaintiff whether so designated or not, but he was a competent witness for either or both of the parties. The common law rule that interested parties could not testify was based on the hypothesis that men were so corrupted by their interest that they would perjure themselves for it. Day v. Stickle, Fla.App.1959, 113 So.2d 559, 560, 80 A.L.R.2d 1291. That rule, with the reservation of the so-called Dead Man's Statute, has been renounced. It has long been the general rule by statute in Florida that interest in the outcome of a case does not disqualify a witness but merely goes to the weight and credibility of his testimony. Fla.Stat. § 90.05, F.S.A.. Of course where the adverse status of the witness is so designated, the party calling the witness under the rule is explicitly free to contradict and impeach. Busser v. Sabatasso, Fla.App.1962, 143 So.2d 532; Gordon v. Sutherland, Fla.App.1961, 131 So.2d 520.
In this connection we find some interesting federal judicial opinions pertaining to corresponding Rule 43(b), Federal Rules of Civil Procedure, and the extent to which a plaintiff may be bound...
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