Saborit v. Deliford, 74--732
| Decision Date | 13 May 1975 |
| Docket Number | No. 74--732,74--732 |
| Citation | 312 So.2d 795 |
| Parties | Joseph SABORIT, a minor by and through his father and next friend, Joseph Saborit, Sr., Individually, Appellants, v. Worthy DELIFORD et al., Appellees. |
| Court | Florida District Court of Appeals |
Levenstein & Burke, Miami and Linda Dakis, Miami, for appellants.
Talburt, Kubicki & Bradley and Robert J. Dickman, Miami, for appellees.
Before BARKDULL, C.J., HENDRY, J., and CHARLES CARROLL (Ret.), Associate Judge.
CARROLL, CHARLES, (Ret.), Associate Judge.
In personal injury action arising out of a motor vehicle collision, the jury decided against the plaintiffs, and in favor of a defendant on its counterclaim for damages to its business vehicle which was involved. Judgment was entered thereon and plaintiffs appealed.
Appellants argue two rulings of the trial court were reversible errors. One was denial of the right of plaintiffs' attorney to exercise retained peremptory challenges to two jurors following questioning of the panel on voir dire by defendants' attorney, after the plaintiffs' attorney had tendered the jury following his questioning of the panel. The other was by charging the jury that the no fault law was applicable to this case and that the plaintiffs could not recover unless the jury should find that the injured plaintiff had suffered some permanent injury.
In refusing to permit plaintiffs' attorney to exercise the peremptory challenges, the trial court appears to have been of the view that after the plaintiffs' attorney had questioned the panel on voir dire, when he 'tendered', and later added that he considered the jury would be fair and impartial, the plaintiffs' attorney thereby had made an unconditional acceptance of the jury so as to preclude him from exercising a challenge after further voir dire examination of the panel by defendants' attorney, even where the latter's examination of the panel furnished reason in the mind of plaintiffs' attorney to exercise peremptory challenges to two of the members of the panel. In that conclusion the trial court was incorrect.
After questioning the panel, the tender by the plaintiffs' attorney was as follows:
We are satisfied it will be a fair and impartial jury.'
The attempt of the plaintiffs' attorney to exercise challenges, after further questioning of the panel on voir dire by the defendants' attorney, and the ruling of the court thereon, are shown in the record as follows:
When a plaintiff's attorney, after questioning a jury panel on voir dire (during which he may or may not have exercised some of the plaintiff's peremptory challenges) is satisfied with the panel at that stage and is ready to submit it for voir dire examination by the defendant's attorney, there is no precise expression or language fixed by rule of the court for tendering the panel. In practice it is done in a variety of ways, such as by a plaintiff's attorney saying: 'No further questions', or 'You may inquire', or 'I tender the jury for questioning', or 'I tender', or even by stating 'I accept the jury'. Tendering of the jury to the defendant at that stage of the voir dire examination, by use of any such language, is to be regarded as conditional. This is so because even if the defendant's attorney, upon questioning the panel, does not exercise a peremptory challenge and announces acceptance of the panel, it may and frequently does occur that because of something...
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