Rosenfeld v. Johnson

Decision Date03 March 1964
Docket NumberNo. 63-402,63-402
Citation161 So.2d 703
PartiesShirley Rae ROSENFELD and Curry Auto Rental, Inc., Appellants, v. Gladys M. JOHNSON, Appellee.
CourtFlorida District Court of Appeals

Dean, Adams & Fischer and Jeanne Heyward, Miami, for appellants.

Loewenstein & Dunn and Thomas A. Horkan, Jr., Miami, for appellee.

Before CARROLL, HORTON and HENDRY, JJ.

CARROLL, Judge.

This is an appeal by the defendants below from an adverse judgment entered on a jury verdict in an automobile accident case.

Plaintiff was a passenger in a car driven by the defendant Shirley Rosenfeld, owned by the corporate defendant. She had worked as a domestic for Mrs. Rosenfeld that day, and was being driven home. The accident occurred while Mrs. Rosenfeld was driving across a causeway, within the speed limit, at approximately 45 miles per hour. She lost control of the car temporarily switched lanes and hit another car in the rear, with consequent injury to her passenger. The plaintiff sued on simple negligence only.

Appellants contend (1) they were entitled to a directed verdict because simple negligence was not proved, and on the ground that the defendant was a guest passenger under § 320.59, Fla.Stat., F.S.A., requiring proof of gross negligence; that it was error (2) to allow the investigating officer to state his conclusion that the accident could not have occurred as the defendant driver claimed, (3) to refuse to allow defendants to show the police officer filed no charge against the defendant driver, and (4) to refuse to allow defendants to bring out the officer's previously expressed conclusion that the accident was unavoidable; (5) that the court erred in its charge in reference to the guest passenger statute and by refusing certain requested charges on the subject; and (6) that certain argument were improper.

No error was committed in denying defendants' motion for directed verdict. There were numerous facts relating to the passenger status of the plaintiff, presenting for jury determination the question of whether her status was that of a guest passenger under the statute so as to require proof of gross negligence for recovery. The jury concluded the plaintiff did not come within the statute, and found in her favor upon concluding that the defendant was guilty of simple negligence. The question of whether the defendant driver was guilty of simple negligence also was a proper question for the jury, under the circumstances disclosed. The explanation given by Mrs. Rosenfeld for loss of control was that she had run over a board which jarred the car and caused her to lose her hold or grip on the steering wheel temporarily and also caused the automobile to swerve or turn into another lane. The investigating officer was allowed to express his opinion to the effect that if she had been driving properly, the board she hit, which was approximately one foot wide and a half inch thick, would not have caused loss of control of the car as she claimed. We hold that the trial court committed error in allowing the officer to so testify because in so doing the officer invaded the province of the jury. Mills v. Redwing Carriers, Inc., Fla.App. 1961, 127 So.2d 453; 32 C.J.S. Evidence...

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5 cases
  • Probkevitz v. Velda Farms, LLC
    • United States
    • Florida District Court of Appeals
    • September 9, 2009
    ...signal, given over objection, was prejudicial error. See Spanagel v. Love, 585 So.2d 317 (Fla. 5th DCA 1991); Rosenfeld v. Johnson, 161 So.2d 703, 705 (Fla. 3d DCA 1964); see also Town of Palm Beach v. Palm Beach County, 460 So.2d at 882. "It is well settled that questions or allusions whic......
  • Penske Truck Leasing Co., LP v. Moore
    • United States
    • Florida District Court of Appeals
    • November 5, 1997
    ...conclusion, or are of such a character that they may be presumed to be within the common experience of all persons); Rosenfeld v. Johnson, 161 So.2d 703 (Fla. 3d DCA 1964)(holding it was error to allow traffic officer's opinion on whether defendant had been "driving properly"). However, bas......
  • Young v. Group Health Co-op. of Puget Sound
    • United States
    • Washington Supreme Court
    • May 8, 1975
    ...ed. 1972). See also The People ex rel. Department of Public Works v. Murata, 161 Cal.App.2d 369, 326 P.2d 947 (1958); Rosenfeld v. Johnson, 161 So.2d 703 (Fla.App., 1964). Furthermore, we do not believe that the question, as phrased at the deposition, called for a legal Under our opinion in......
  • Wingate v. New Deal Cab Co.
    • United States
    • Florida District Court of Appeals
    • January 14, 1969
    ...written statement was prejudicial. See Central Mutual Insurance Company v. Newman, 117 So.2d 41 (Fla.App.3d 1960); Rosenfeld v. Johnson, 161 So.2d 703 (Fla.App.2d 1964); and this court's opinion in King v. Califano, 183 So.2d 719 Our disposition of this case on the basis of the error discus......
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