Ritter v. Brengle

Decision Date06 April 1966
Docket NumberNo. 5653,5653
Citation185 So.2d 7
PartiesLeffie H. RITTER, an Incompetent, by his Guardian and Next Friend, L. W. Ritter, Appellant, v. Robert T. BRENGLE, Administrator of the Estate of David Brengle, Deceased, Appellee.
CourtFlorida District Court of Appeals

Edward J. Nolan, of Bentley, Miller, Sinder, Carr, Chiles & Ellsworth, Lakeland, for appellant.

John W. Boult, of Shackleford, Farrior, Stallings, Glos & Evans, Tampa, for appellee.

HOBSON, Judge.

This appeal is from a final summary judgment entered in favor of the appellee, defendant below. Leffie H. Ritter was declared incompetent prior to the filing of the complaint in the lower court and L. W. Ritter was appointed as his guardian, thereafter filing suit in such capacity. At

John W. Boult, of Shackleford, Farrior, Brengle was named defendant but subsequently was killed in an automobile accident and the appellee herein was substituted as defendant in the court below.

The final summary judgment was based upon the pleadings, affidavits and depositions of Officer Moore and Robert T. Brengle. The final summary judgment recites:

'* * * There are no witnesses to the occurrence which is the subject matter of this action, and it appearing to the Court that there is no dispute as to any material facts * * *.'

Based upon the above-quoted findings the trial court entered a final summary judgment for the appellee.

It is well settled that when a party moves for summary judgment the burden of proof is upon the moving party and he not only admits the established facts favorable to the opposing party but also all favorable conclusions or inferences reasonably inferred from the evidence. This was clearly set out in Prescott v. Erwin, Fla.App.1961, 133 So.2d 332:

'The courts are cautious in granting summary judgments in negligence cases, for negligence is usually for the determination of the jury. Saunders v. Kaplan, Fla.App., 101 So.2d 181. The burden of proof in a summary judgment is always on the moving party and all doubts must be resolved against him, Chirico v. Dew, Fla.App., 113 So.2d 597. The movant for summary judgment not only admits the basic facts established that are favorable to the adverse party, but also every conclusion or inference favorable to the adverse party that might be reasonably inferred from the evidence, Warring v. Winn-Dixie Stores, Inc., Fla.App., 105 So.2d 915.'

The record before the trial court showed that the defendant, David Brengle, was operating a Chevrolet pick-up truck in a northerly direction on State Road 25 on December 7, 1962, the date of the alleged automobile accident which was the subject of the suit. The deposition of Officer H. H. Moore showed that he investigated the accident and upon arriving at the scene he found a 1950 Chevrolet pick-up truck and a 1958 Volkswagen which were parked on the side of the road. He identified Leffie Ritter as the driver of the Volkswagen and David Brengle as the driver of the Chevrolet truck. Officer Moore, in answer to a question as to what he found at the scene of the accident, answered in part as follows:

'* * * indications were that the--there was damage to the rear of the Volkswagen, more to the left portion than directly to the rear. And to the front of the Chevrolet pick-up truck, * * *.'

Further in his deposition Officer Moore testified:

'* * * The headlight was busted out of the pick-up truck. The imprint of the front of the truck was fairly clearly visible into the rear of the bus * * *.'

The officer further testified that the damage to the truck was more to the left front and that the left headlight was broken. The damage to the Volkswagen was to the left rear. He also found the glass from the left front headlight of the truck approximately 2 to 3 feet from the center line in the northbound traffic lane of State Road 25.

The deposition of Robert T. Brengle establishes that he was the father of David Brengle and that shortly after the accident on December 7, 1962, he and his son had a conversation concerning the accident. Robert T. Brengle testified as follows:

'Q Now, Mr. Brengle, would you tell us what your son told you about this accident and this occurrence?

'A As I remember--of course, there was not very much said because of the minor incident. We didn't--there was not too much questioning. David was driving, I would say, somewhere in his truck--it had a capacity of about thirty-five or forty miles an hour--coming up from where he had been on some future farmers business, and he saw this truck up ahead, I understand, the lights, And it was slowed down and he slowed down too. As far as I know, if there was an impact, it was so minor that neither one thought anything of it in either car. And that they had waited there though to--David offered to wait there. In fact, the other man said no. In fact, they didn't--they thought once they'd go on, thought they'd get a patrolman there.' (Emphasis supplied.)

The appellee contends that the above-quoted answer of Robert T. Brengle is hearsay and therefore not admissible. These words of David Brengle spoken to his father, Robert T. Brengle, come clearly within the admission-against-interest exception to the hearsay rule. This is true even though David Brengle is deceased and the appellee has been substituted in his place. In 13 Fla.Jur. 227, Evidence, § 229, we find the following:

'Admissions against interest made by a person since deceased may be introduced against a person claiming under or in succession to the deceased declarant.' Citing Taylor v. Cory, Fla.1951, 53 So.2d 820.

Following the set down in the Prescott case, supra, the reasonable inferences favorable to the appellant which can be drawn from the record before the trial court at the time of the entry of the final summary judgment are (1) Leffie Ritter was travelling in a northerly direction on State Road 25 in a proper manner and in his proper traffic lane; (2) David Brengle was travelling northbound on State Road 25 to the rear of Leffie Ritter; and (3) the left front of David Brengle's pick-up truck collided with the left rear of Leffie Ritter's Volkswagen when both vehicles were approximately 2 to 3 feet from the centerline of State Road 25 in the proper northbound lane.

The appellant contends that since the above...

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3 cases
  • Jones v. Alayon
    • United States
    • Florida District Court of Appeals
    • April 8, 2015
    ...privity of estate exists between the declarant and the party against whom the statements are sought to be used.”); Ritter v. Brengle, 185 So.2d 7, 9–10 (Fla. 2d DCA 1966) (finding statements were admissible under admission exception to hearsay rule, “even though [the declarant] is deceased ......
  • Scott v. Midyette-Moor, Inc.
    • United States
    • Florida District Court of Appeals
    • March 18, 1969
    ...could be based. I would therefore affirm the trial court's judgment. 1 Chaney v. Headley, 90 So.2d 297 (Fla.1956).2 Ritter v. Brengle, 185 So.2d 7 at 10 (Fla.App.2d, 1966).3 LaBarbera v. Millan Builders, Inc., 191 So.2d 619, 622 (Fla.App.1st, ...
  • Chisolm v. Mapp, 76-559
    • United States
    • Florida District Court of Appeals
    • June 14, 1977
    ...922, at 927 (Fla.3d DCA 1959). Also see Taylor v. Cory, 53 So.2d 820 (Fla.1951); Daggett v. Willey, 6 Fla. 482 (1855); Ritter v. Brengle, 185 So.2d 7 (Fla.2d DCA 1966).2 Section 90.05, Florida Statutes ...

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