Pandula v. Fonseca

• Decision Date: 20 December 1940
• Citation: 145 Fla. 395,199 So. 358
• Parties: PANDULA v. FONSECA.
• Court: Florida Supreme Court

199 So. 358

145 Fla. 395

PANDULA v. FONSECA.

Florida Supreme Court, Division B.

December 20, 1940

Rehearing Denied Jan. 14, 1941.

Error to Circuit Court, Dade County; Arthur Gomez, Judge.

Action by Pinkey Fonseca against John Pandula to recover damages for wilfully and maliciously assaulting and beating plaintiff. To review a judgment for plaintiff, defendant brings error.

Affirmed.

COUNSEL

Hendricks & Hendricks, of Miami, for plaintiff in error.

Carr &amp Carr, of Miami, for defendant in error.

OPINION

PER CURIAM.

The defendant, who is plaintiff in error herein, took this writ of error to a final judgment rendered by the Circuit Court in Dade County awarding damages on a charge of wilfully and maliciously assaulting and beating the plaintiff, who is defendant in error herein.

The plaintiff below charged that the defendant committed the assault and battary February 12, 1939, with the result that her left leg was broken in three places, her left ankle dislocated, and multiple cuts and bruises were sustained in and about her face and body. In addition, she alleged that by reason of the injuries inflicted by defendant, she was compelled to go to a hospital for 11 days, that she was thereafter removed to her home and confined to bed for 8 weeks, that she suffered mental and physical pain during this time, and that the injuries were permanent to some extent. She sought $7,500 damages.

The defendant entered the plea of 'not guilty,' and offered an alibi as his defense upon the trial.

The plaintiff's first witness was the physician who had treated her at the hospital on the night of the alleged assault, and who also attended her for some time thereafter. Her testimony consisted primarily in a description of the plaintiff's injuries and their effects. It was also brought out that his attendance in court had not been in response to a subpoena.

The cross-examiner elicited the fact that the witness was receiving a 'certain retainer' from the plaintiff for testifying. The line of questioning continued along this course until the court refused to permit the question as to the amount of compensation the witness was receiving. The defendant now insists the court's ruling thereon was error.

This court has held that it is error to exclude questions touching interest, motives, animus, or the status of witnesses in a suit. Bryan v. State, 41 Fla. 643, 26 So. 1022; Sylvester v. State, 46 Fla. 166, 35 So. 142. But the question as to the extent to which cross-examination would be permitted to show bias or interest was not considered in either case.

Because in the nature of the case, no definite rule can be laid down as to what circumstances may be inquired about to show a witness' bias, the matter rests largely in the discretion of the trial court, and its rulings will not be disturbed in the absence of a showing of a clear abuse of the discretion. See Vassar v. Chicago, B. & Q. R. Co., 121 Neb. 140 236 N.W. 189, 74 A.L.R. 1154 and note; 3 Jones, 4th Ed. 1938 Sec. 829; 11 R.C.L. 646; 28 R.C.L. 612. In a general way, it can be said that it is competent to show as a fact, by cross-examination, that a witness is hostile to the party against whom he testifies, and the jury can consider this hostility in estimating his testimony; but an inquiry into the conduct and acts of parties producing the hostility raises another and collateral issue, which should not as a general rule be permitted to be gone into by the trial judge; otherwise there would be no limit to the investigation of any cause. Eldridge v. State, 27 Fla. 162, 9 So. 448.

The cross-examiner was permitted to bring out the fact that money had come to the witness, from which the jury might have inferred that it would likely have a biassing effect upon his testimony. It was the existence of this feeling that was material, and was shown, and we think the court's ruling was not prejudicial to the defendant and that no abuse of discretion has been shown.

The defendant next assigns as error the rejection of certain proffered evidence and testimony which tended to show the plaintiff to be of a bad moral character. The trial court did permit questions and evidence tending to impeach and discredit the plaintiff's reputation for truth and veracity, and instructed the jury that if they believed the plaintiff had been discredited and not entitled to belief, then they should find for the defendant. They were further charged that 'the moral character of the plaintiff' was not in issue and that 'any testimony submitted on the witness stand regarding the reputation of the plaintiff for truth and veracity merely goes to the matter of her credibility' to be considered with the rest of the evidence.

The court's limitation of the cross-examination to matter pertaining to plaintiff's reputation for truth and veracity and the exclusion from the jury's consideration of any evidence as to her moral character was not error. For 'that power to determine the limits of cross examination which is injurious to the character of the witness is vested in the trial court to the extent that the court's ruling is not ground for reversal unless the appellant establishes an abuse of discretion which has occasioned prejudice.' 3 Jones, 4th Ed. 1938, Sec. 834; see, also, 2 Wigmore 2d Ed. 1923, Sec. 923. This court stated the rule in Nelson v. State, 99 Fla. 1032, 128 So 1, 3, to be that, 'when the character of a witness is gone into, the only proper object of inquiry is as to his reputation for truth and veracity, as neither his general character nor particular phases of character can...