Porter v. Pappas, 78-88

• Decision Date: 06 March 1979
• Docket Number: No. 78-88,78-88
• Citation: 368 So.2d 909
• Parties: Marshall PORTER, Appellant, v. Mario PAPPAS, Individually and as father of Helen Jean Pappas, a minor, and Frederick Boehm, Appellees.
• Court: Florida District Court of Appeals

Page 909

368 So.2d 909

Marshall PORTER, Appellant, v. Mario PAPPAS, Individually and as father of Helen Jean Pappas, a minor, and Frederick Boehm, Appellees.

No. 78-88.

District Court of Appeal of Florida, Third District.

March 6, 1979.

Rehearing Denied April 12, 1979.

Headley & Headley, Daniels & Hicks and Mark Hicks, Miami, for appellant.

Talburt, Kubicki & Bradley and Betsy E. Hartley, Miami, for appellees.

Before HAVERFIELD, C. J., and PEARSON and HENDRY, JJ.

HENDRY, Judge.

This is an appeal by appellant/plaintiff from an adverse final judgment entered pursuant to a jury verdict in an action for personal injuries arising out of an accident between a motorcycle and an automobile.

The sole point presented for our determination is whether the trial court committed reversible error in admitting into evidence a written and signed statement made by the minor operator of the automobile to officers at the scene of the accident to the effect that the minor did not have the permission of the owner or primary user of the automobile to drive it at the time of the accident. If the minor was a permissive user of the automobile, then insurance coverage would be provided.

The facts of the case are as follows: appellant sued appellee Mario Pappas, individually and as the father of Helen Pappas, and appellee Frederick Boehm alleging that Helen so negligently operated an automobile owned by Frederick Boehm that it collided with a motorcycle owned and operated by appellant. It appears from the evidence that Helen obtained possession of the Boehm automobile while it was in the possession of Mr. Boehm's minor daughter, Lauri, and being used by Lauri with his permission.

On the day of the accident, Lauri had driven Helen and two other young girl friends to the beach. Upon leaving the beach, the girls returned to Helen's home and took showers. While Lauri was taking her shower, Helen took the ignition keys that Lauri had left either in the bathroom or on the bed, and drove away in Lauri's automobile. She had driven only a short distance from her home when she collided with appellant, causing him serious injuries.

Prior to trial, the parties entered into a written stipulation that the sole issue to be tried was whether or not Helen Pappas had Lauri Boehm's express or implied permission to use the automobile involved in the accident. The testimony adduced at trial differed substantially as to whether Lauri had given Helen permission to use the automobile.

Lauri testified that when she came out of the shower she did not realize that her keys were gone. Soon thereafter the Pappas' phone rang and Helen's sister Terry answered it. She began screaming that Helen had hit somebody with somebody's car. Lauri said she looked out the door and for the first time realized that her car was missing. Lauri further testified that she never gave Helen permission to use the Boehm automobile. Lauri and Helen's mother drove to Greynolds Park where the accident occurred. When Lauri saw the damage to the Boehm automobile she screamed at Helen who was talking to police officers, saying, "Why did you take my car? My father is going to kill me and you had no permission."

Helen's testimony was substantially different. She stated that she emerged from her shower and asked Lauri if she could use the car to "cruise" around the block. Helen replied, "Sure, just don't get me in trouble." Helen denied that Lauri said anything to her at the scene of the accident. Further, Andrea Shapiro, one of the girls accompanying Helen and Lauri to the beach and back to Helen's home, testified that she was present when Lauri gave Helen her permission to use the car.

At the time of the accident, Sgt. Terry Palmer and seven other police officers were on special assignment at Greynolds Park. Shortly after the accident occurred, the officers were at the scene. Sgt. Palmer and one of his men apprehended Helen in the woods nearby and took her back to the scene of the accident, turning her over to the investigating officer, Anthony Cos. Officer Cos was dispatched to investigate the accident and at trial, testified that it was his responsibility to prepare the traffic report. He began his investigation by questioning Helen. At that time, he made no notation on the accident report of what Helen said.

Shortly after Cos arrived, Officer Robert Hinman, a traffic homicide investigator was sent because of the possibility that a death may have occurred. Officer Hinman testified that once he appeared at the accident site, he was in charge of the overall investigation and directed Officer Cos to assist him in the investigation.

Once Officer Hinman arrived, Officer Cos took Helen to him for questioning. Officer Cos remained in the presence of both Officer Hinman and Helen during the initial questioning. Cos testified that he heard Officer Hinman read Helen her "Miranda Rights" and he saw Officer Hinman take a written statement from Helen. Prior to the completion of the statement, Officer Cos returned to his vehicle to complete the accident report.

Officer Hinman did not advise Helen that he was investigating for a possible homicide or that his report would not be made a part of the traffic report to be filed in Tallahassee. He did not advise her that his report was any different than any other police...