Purvis v. Inter-County Tel. & Tel. Co.

• Decision Date: 20 October 1967
• Docket Number: No. 7003,INTER-COUNTY,7003
• Citation: 203 So.2d 508
• Court: Florida District Court of Appeals
• Parties: Connie W. PURVIS, Appellant, v.TELEPHONE & TELEGRAPH COMPANY, a corporation existing under the laws of the State of Florida, Appellee.

Page 508

203 So.2d 508

Connie W. PURVIS, Appellant, v. INTER-COUNTY TELEPHONE & TELEGRAPH COMPANY, a corporation existing under the laws of the State of Florida, Appellee.

No. 7003.

District Court of Appeal of Florida, Second District.

Oct. 20, 1967.

Rehearing Denied Nov. 20, 1967.

Lefferts L. Mabie, Jr., Pensacola, and Larry Klein, of Miller, Cone, Owen, Wagner & Nugent, West Palm Beach, for appellant.

Charles Cook Howell, Jr., Jacksonville, for appellee.

PER CURIAM.

This rear-end collision case was originally before this court in an opinion reported at 163 So.2d 38. The facts giving rise to this law action are set forth in some detail in that opinion and to reiterate all of them herein would serve no useful purpose. A brief 'statement of the case' is necessary, however, so that the present appeal may be placed in its proper perspective.

The appellant here, plaintiff below, prior to the first appeal to this court, moved for summary judgment on the issue of liability against the defendant, appellee here. The trial court granted plaintiff's motion and the case proceeded to trial on the issue of damages only. The defendant brought the original appeal to this court, challenging the trial court's order granting plaintiff's motion for summary judgment. This court reversed the lower court's order and remanded the case for a new trial on the issues of liability and damages. The plaintiff's petition for writ of certiorari was granted by the Supreme Court, which remanded the cause for a new trial on the liability issue only, and not on both liability and damages as this court had ordered. See Purvis v. Inter-County Telephone and Telegraph Company, Fla.1965, 173 So.2d 679. In due course a new trial was had; the jury found for the defendant on the liability issue; and plaintiff has appealed the final judgment entered against him.

Point III of appellant's brief presents the following question:

'Did the court commit prejudicial error in excluding the plaintiff from the courtroom during his own trial on the grounds that his physical appearance and conduct may have resulted in prejudice to either party?'

After a careful analysis of the record presently lodged in this court, we conclude that the exclusion of the plaintiff from the courtroom in this instance was error and we reverse.

The lower court's order denying plaintiff's motion for judgment notwithstanding verdict and/or motion for new trial provides in pertinent part that '* * * the court interviewed the plaintiff, Connie W. Purvis, out of the courtroom and found him to be argumentative, somewhat irrational and of such mental attitude and physical appearance that the jury might be influenced.'

In Florida Greyhound Lines v. Jones, Fla.1952, 60 So.2d 396, the Supreme Court of Florida was faced with the propriety of a proceeding where the trial court permitted the appearance of the plaintiff '* * * before the jury, when she was on a stretcher and, apparently, in a weak, sickened and stupified condition and attended by a nurse and a hospital attendant.' There the Court said:

'* * * One who institutes an action is entitled to be present when it is tried. That, we think, is a right that should not be tempered by the physical condition of the litigant. It would be strange, indeed, to promulgate a rule that a plaintiff's right to appear at his own trial would depend on his personal attractiveness, or that he could be excluded from the court room if he happened to be unsightly from injuries which he was trying to prove the defendant negligently caused. The appellee was properly present. If the use of stretcher and attendants was affected there would be occasion for the court to regulate the appearance to prevent the opposite party from being victimized and the jury from being deceived by the subterfuge, but no such deceit is claimed to have been practiced in this trial.'

Then, in Dickson v. Bober, 1964, 269 Minn. 334, 130 N.W.2d 526, a case relied on heavily by appellee, we find the highest Court of Minnesota making the following observations:

'The accident changed Allan Dickson from a vital, intelligent, healthy youth to one unable to express or sustain himself, helpless and entirely dependent on others, and wholly unable to comprehend trial proceedings. Before deciding against his appearance in court, the trial judge observed him and noted:

"* * * His eyes seemed to function on detection of an unusual movement. Hideous and agonizing groans and sounds emanated from plaintiff. In this trial test, arranged so that the court would have some conception of...