Seminole Shell Co. v. Clearwater Flying Co.

• Decision Date: 02 October 1963
• Docket Number: No. 3810,3810
• Citation: 156 So.2d 543
• Parties: SEMINOLE SHELL COMPANY, Inc., a Florida corporation, Appellant, v. CLEARWATER FLYING COMPANY, Inc., a Florida corporation, Robert D. Bickerstaffe, Jr., and Coylle Lee Cross, Appellees.
• Court: Florida District Court of Appeals

Page 543

156 So.2d 543

SEMINOLE SHELL COMPANY, Inc., a Florida corporation, Appellant, v. CLEARWATER FLYING COMPANY, Inc., a Florida corporation, Robert D. Bickerstaffe, Jr., and Coylle Lee Cross, Appellees.

No. 3810.

District Court of Appeal of Florida, Second District.

Oct. 2, 1963.

Shackleford, Farrior, Stallings, Glos & Evans, Tampa, for appellant, Seminole Shell Co., Inc.

Phillips & McFarland, Clearwater, for appellees.

MOODY, JAMES S., Associate Judge.

Appellant, Seminole Shell Company, Inc., plaintiff below, sued Appellees, defendants below, Clearwater Flying Company, Inc. a Florida corporation, Robert D. Bickerstaffe, Jr., and Coylle Lee Cross, seeking damages resulting from an airplane accident. The complaint was in two counts, the first based on negligence and the second on breach of an oral contract of bailment. The defendant, Cross, was dismissed as a party defendant and upon trial verdict and judgment were rendered for defendants. Plaintiff appealed. We reverse for a new trial.

Appellant alleges error resulted during the trial when the Court permitted into evidence on cross examination a question concerning insurance coverage on the damaged aircraft. Plaintiff's aircraft was damaged in December, 1958, when defendant, Bickerstaffe, an employee of Clearwater Flying Co., Inc., attempted to land at night without runway lights at the Clearwater Air Park.

During the trial, Ahrry Armston, an official of plaintiff corporation, was asked the following question by Plaintiff's counsel:

'Back to the conversation that you and Mr. Bickerstaffe had prior to the time of this accident, would you please relate to the jury and the Court what the substance of that conversation was; tell us what the discussion was?'

Armston gave a rather lengthy answer including the following:

'Some, perhaps serveral days later I saw Mr. Bickerstaffe out at the Air Park again and suggested perhaps he go ahead and take the plane to the factory when he though the weather suitable. He agreed. In that particular conversation I cautioned him very carefully about the need for a qualified pilot, properly certificated to fly the plane, because my insurance would be void, the hull insurance on the airplane would be void if not flown by a properly certificated pilot. He informed me a day or two later that he was going to the factory and he would go.'

No objection or motion was made by either counsel but on cross examination, over objection, the following question was asked by defendant's counsel:

'Mr. Armston, have you, or your company, been compensated by insurance for the loss incurred by you through this aircraft accident?'

Again, over objection of plaintiff's counsel, the witness answered: 'We were partially compensated for the loss, yes.'

The trial court in overruling both objections based its ruling on the inadvertent mention by the witness of 'hull insurance' in answer to a question which was in no way calculated to elicit a response concerning insurance. The Court ruled plaintiff had opened the door to inquiry concerning insurance compensation although this subject had no relevancy to any issue being tried. However, the trial court of its own volition at the close of the evidence in its instructions to the jury apparently tried to correct any error or misunderstanding on this subject by a charge to the jury that the question of insurance had nothing to do with the issues being considered by the jury and should have no part in its verdict.

It is within the reasonable discretion of the Court to regulate and control the extent of cross examination of a witness and this discretion will not be disturbed unless it has been abused or substantial harm has been done to the complaining party. H. I. Holding Co. v. Dade County, Fla.App., 129 So.2d 693; Louette v. State, 152 Fla. 495, 12 So.2d 168. The subject of insurance has at times been permitted before the jury when relevant. Thus in Barnett v. Butler, Fla.App.1959, 112 So.2d 907, existence of insurance coverage was admitted as tending to prove the issue of ownership of a vehicle involved. Also, there is the oft discussed rule permitting the subject of insurance on voir dire under certain prescribed circumstances. Ryan v. Noble, 95 Fla. 830, 116 So. 766; Lambert v. Higgins, Fla., 63 So.2d 631. However, unless this subject is relevant to a matter before the Court or tends to establish a fact in issue any testimony on this subject should be rejected. The Courts have been very careful to prevent the question of insurance from creeping into a case to keep any prejudice or favoritism from arising.

Where insurance coverage of a party has been inadvertently...