Ritter v. Jimenez, s. 75--1462
Decision Date | 08 March 1977 |
Docket Number | Nos. 75--1462,75--1493,s. 75--1462 |
Parties | Teala RITTER et al., Appellants, v. Victor JIMENEZ et al., Appellees. |
Court | Florida District Court of Appeals |
Virgin, Whittle & Popper, Susan Goldman, Podhurst, Orseck & Parks, Miami, for appellants.
Fowler, White, Burnett, Hurley, Banick & Knight and Fred R. Ober, Wicker, Smith, Davant, McMath, Tutan & O'Hara and Richard A. Sherman, Miami, for appellees.
Before HENDRY, C.J., and NATHAN, J., and CHARLES CARROLL (Ret.), Associate Judge.
In these consolidated appeals, plaintiffs Teala Ritter and Lloyd Ritter, her husband, seek a review of a final judgment rendered in their favor following a jury verdict in an automobile accident case in which liability was admitted by the defendants, appellees.
The record reflects that on September 19, 1973, Teala Ritter was seriously injured when the school bus she was driving was involved in a collision with another vehicle near Tavernier, Florida. The only issue was damages. A jury verdict was rendered for Teala in the amount of $35,000.00 and for Lloyd in the amount of $5,000.00.
First, the Ritters contend that they were denied a fair trial because the trial court, without authority and over the objections of counsel, called Nurse Renee Steele, a rehabilitative specialist employed by Mrs. Ritter's employer's workmen's compensation carrier, to aid Mrs. Ritter with rehabilitation after the accident, to testify as the Court's own witness.
The practice of calling a witness as the court's own witness has long been recognized in Florida criminal proceedings. 1 In fact, the authority of a trial judge in a criminal prosecution to call a witness as the court's own witness on its own motion or at the request of one of the parties, 'has been recognized in all jurisdictions in which the question has been considered.' 2 The question of whether it is a proper practice in civil proceedings has not yet been reached in Florida.
Rule 614 of the Federal Rules of Evidence, 28 U.S.C.A., provides that the court,
'. . . on its own motion or at the suggestion of a party, (may) call witnesses, and all parties are entitled to cross-examine witnesses thus called.'
In the Advisory Committee's notes to Rule 614, it is stated that,
'While exercised more frequently in criminal than in civil cases, the authority of the judge to call witnesses is well established.'
In resolving the question presented by this case, we look to the new Florida Evidence Code, Sections 90.01, et seq., Florida Statutes, 1976 Supp., to become effective July 1, 1977. Section 90.615 thereof, entitled 'Calling witnesses by the court,' provides:
'(1) The court may call witnesses whom all parties may cross-examine.
(2) When required by the interests of justice, the court may interrogate witnesses, whether called by the court or by a party.'
We recognize that Section 90.615 was neither in effect at the time of the trial in this case, nor during the pendency of this appeal. Nevertheless, as a matter of policy, we find it to be highly persuasive, and we apply it to this case. Moreover, there is no Florida case or statutory authority prohibiting the court's calling witnesses in civil cases. Therefore, we hold that the court has discretion to call and examine witnesses in the interest of justice and in the ascertainment of truth. Plaintiff-appellants have failed to show any abuse of discretion by the trial judge.
The assertion that Nurse Steele gave professional expert opinion without a predicate being laid is not supported by the record. She testified that she had been a rehabilitative expert for approximately three and one-half years and a registered nurse for about twenty years.
The question of expertise should initially be determined by the court, and the weight to be given such testimony as a matter for the jury. As it appears that the court found Nurse Steele's background to be sufficient, from that point it was within the province of the jury to draw such conclusions from her testimony as it chose, and as were warranted by the evidence.
The crux of the case was whether, or to what extent, the plaintiff had recovered from her injuries. Nurse Steele testified that the plaintiff had gone back to work and was capable and medically fit to perform her job. It is the duty of the trial court to determine the qualification of an expert witness on the subject matter on which the witness testifies, and the court's judgment will not be disturbed on appeal unless a clear abuse of discretion is made to appear. Vitale Fireworks Manufacturing Co., Inc. v. Marini, 314 So.2d 176, 180 (Fla.1st DCA 1975). No such abuse of discretion has been shown.
Appellants' next contention is that the court erred in asking all of the questions on voir dire of the jury, and denying counsel's request to conduct the examination. Rule 1.431(b) of the Florida Rules of Civil Procedure provides as follows:
The record reflects that at a conference just before trial, the...
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