Romano v. Palazzo
| Decision Date | 14 February 1922 |
| Citation | 91 So. 115,83 Fla. 243 |
| Parties | ROMANO v. PALAZZO. |
| Court | Florida Supreme Court |
Error to Circuit Court, Franklin County; E. C. Love, Judge.
Action by George Palazzo against S. A. Romano. Judgment for plaintiff, and defendant brings error.
Affirmed.
Syllabus by the Court
Exclusion of witness during trial discretionary with court; permitting witness to testify notwithstanding noncompliance with rule discretionary with court; exercise of discretion not disturbed in absence of abuse. The matter of excluding witnesses from the courtroom during the trial of a cause is one within the discretion of the trial court, and where the rule has been applied the matter of permitting a witness to testify notwithstanding the fact that he has not complied with it is also matter within the court's discretion, and will not be interfered with unless it has been made to appear that such discretion has been abused to the injury of the complaining party.
Method of conducting trials, introduction of evidence, and order of witnesses discretionary with court; court's rulings presumed to be correct. The method of conducting trials, the introduction of evidence, and the order in which witnesses may be called are matters which are left to the reasonable discretion of the trial court, and every presumption is in favor of the correctness of the court's ruling in the premises.
Refusal to permit witness who has not conformed to rule to testify not error, in absence of proffer to court of evidence sought to be introduced through witness. Where the court has placed the witnesses under the rule, and a witness is called who has not conformed to it, the party calling such witness should make proffer to the court of the evidence sought to be introduced through such witness; if he fails to do so, the record will not disclose any injury to the party calling such witness, if the court refuses to allow him to testify.
Defendant on plea of set-off for money paid third person must show that money was paid for valid claim of third person under agreement with plaintiff. In an action of assumpsit, where the defendant pleaded a set-off consisting of money paid by the defendant to a third person at the plaintiff's request, and the evidence offered in support of the plea tends to show that an agreement existed between the plaintiff and defendant under which the plaintiff was to purchase supplies from a third person and the same should be charged to the defendant, the defendant in support of his plea should show that the money paid by him was for a valid existing charge, made against him by the third person under the agreement.
Instruction making defendant liable for board at increased rate if he continued to board with plaintiff without protest after notice of increase held warranted by evidence. Charges announcing a correct proposition of law applicable to the evidence are correctly given.
Evidence held to sustain judgment for board furnished defendant's dog. Evidence examined, and found sufficient to support the verdict.
R. Don McLeod, Jr., of Apalachicola, for plaintiff in error.
W. J Oven, of Tallahassee, for defendant in error.
George Palazzo brought an action against S. A. Romano in the circuit court for Franklin county for board for a number of years commencing in 1913.
The declaration contains seven counts as follows For money payable by the defendant to the plaintiff for goods bargained and sold by the plaintiff to the defendant; second for work done and materials furnished: third, for money lent; fourth, for money paid by the plaintiff for the defendant at his request; fifth, for money received by the defendant for the use of the plaintiff; sixth, account stated; and, seventh, for board and lodging furnished the defendant and his dog from the 1st of January, 1913, to and including the 1st of January, 1919, less a sum of money which the plaintiff admits that the defendant had paid on account amounting to $1,308.56.
The defendant pleaded that he never was indebted; second, payment; and, third, that the plaintiff was indebted to the defendant at the time of the institution of the suit in the sum of about $1,927, which he was willing to set off against the plaintiff's claim.
There was a verdict for the plaintiff in the sum of $500, and judgment was entered accordingly for the plaintiff. The defendant seeks to reverse that judgment upon writ of error.
During the trial of the cause the witnesses were placed under the rule. After the plaintiff rested his case the defendant called as a witness, Antonio Cisceroni. The plaintiff objected to this witness testifying upon the ground that he had not been excluded from the courtroom under the rule, and there was no exception made in his favor. The objection was sustained, and the witness was not permitted to testify. That transaction was made the basis of the first assignment of error.
No proffer was made of the evidence sought to be introduced through this witness. There was nothing to show whether the proposed testimony of the witness was material, nor whether it was or not merely cumulative, nor whether he was competent to testify as to the matters sought to be introduced in evidence through him.
The matter of excluding witnesses from the courtroom during the trial of a cause is one within the discretion of the trial court, and whether a witness shall be excluded from the rule or whether one who has not been placed under the rule, but who nevertheless has remained in the courtroom during the taking of testimony, as was true in the case of Antonio Cisceroni, shall be permitted to testify notwithstanding the rule are all matters within the discretion of the trial court, and will not be interfered with by an appellate court, unless it has been made clearly to appear that the trial court has abused its discretion to the injury to the complaining party. There is nothing in the record to show that the action of the court in excluding the testimony of the witness resulted in any harm to the defendant. The presumption is in favor of the correctness of the court's ruling and reasonable exercise of discretionary power, and the burden is upon plaintiff in error to make the alleged error in the court's ruling affirmatively to appear. See Seaboard Air Line Ry. v. Smith, 53 Fla. 375, 43 So. 235; Falk v. Kimmerle, 57 Fla. 70, 49 So. 504, 47 Ann. Cas. 839; Morasso v. State, 74 Fla. 269, 76 So. 777.
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Hall v. State
... ... of evidence, much must be left to the discretion of the trial ... judge. See Romano v. Palazzo, 83 Fla. 243, 91 So ... 115 and cases cited ... Defendant ... also assigns as error the giving of the following charge: ... ...
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...how to remedy the violation. Odom, 403 So.2d at 941; Rollins v. State, 256 So.2d 541 (Fla. 4th DCA 1972). See also Romano v. Palazzo, 83 Fla. 243, 91 So. 115 (1922). The remedy can range from not permitting the witness to testify at all to allowing cross-examination on the matter as bearing......
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...JJ. PER CURIAM. Affirmed. See Brackin v. Boles, 452 So.2d 540 (Fla.1984); Galbut v. Garfinkl, 340 So.2d 470 (Fla.1976); Romano v. Palazzo, 83 Fla. 243, 91 So. 115 (1922); Jimenez v. Gulf & Western Manufacturing Co., 458 So.2d 58 (Fla. 3d DCA 1984); Green Companies v. DiVincenzo, 432 So.2d 8......
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Beavers v. Conner
...find no error in failing to invoke the rule excluding witnesses. This is a matter within the discretion of a trial court. Romano v. Palazzo, 83 Fla. 243, 91 So. 115; New Amsterdam Casualty Company v. Utility Battery Manufacturing Company, 122 Fla. 718, 166 So. 856; City of Miami Beach v. Wa......