Sessions v. Summers, G-154
Decision Date | 20 July 1965 |
Docket Number | No. G-154,G-154 |
Citation | 177 So.2d 720 |
Parties | Donald U. SESSIONS, as Executor and Personal Representative of the Estate of Arthur M. Summers, Deceased, Appellant, v. Viola M. SUMMERS, Appellee. |
Court | Florida District Court of Appeals |
Parkinson, Sessions, Duffett & Barry, Daytona Beach, for appellant.
Nicholas A. Caputo, Holly Hill, for appellee.
The defendant, as executor of the last will and testament of Arthur M. Summers, has appealed a final money judgment entered upon a jury's verdict in favor of plaintiff. Appellant has assigned thirty-five errors allegedly committed by the trial court in this proceeding, and has condensed his assignments into nine points of law argued in his brief.
It is appellant's principal contention that the trial court erred in admitting into evidence over appellant's objection testimony of interested witnesses regarding transactions or communications with the decedent, Arthur M. Summers, contrary to F.S. Section 90.05, F.S.A., popularly known at the 'Dead Man's Statute.' 1
It appears from the allegations of the complaint that the cause of action sued upon consisted of an indebtedness allegedly owed plaintiff by the decedent prior to and at the time of his death, which indebtedness represented a loan evidenced by a check signed by appellee, endorsed and cashed by the decedent in the sum of $15,000.00 on which only a few payments had been made prior to decedent's death. Appellant answered the complaint asserting among others the affirmative defense of statute of limitations and accord and satisfaction. Thereafter, appellant filed a motion for summary judgment. In opposition to this motion appellee filed her affidavit denying that the indebtedness sued upon had been paid and discharged by the decedent prior to his death, and averring that the loan to decedent forming the basis of the cause of action was evidenced by the check in the sum of $15,000.00 given to the decedent by appellee, a copy of which was attached to the affidavit. At the hearing on appellant's motion for summary judgment appellee was examined as a witness, during the course of which she identified and there was offered in evidence before the court the check for $15,000.00 referred to both in appellee's complaint and affidavit. Appellant made no objection to the introduction in evidence of the check, so it was received and filed in evidence by the court and marked as appellee's exhibit 1 in the case.
Appellant's motion for summary judgment was denied and the case proceeded to trial. During the trial appellee was called as a witness and testified in her own behalf. In the course of her direct examination her counsel announced to the court that the check described in the complaint which evidenced the loan forming the indebtedness sued upon had already been received in evidence by the circuit judge who heard the motion for summary judgment, and was thereupon reoffered as plaintiff's exhibit 1. Parenthetically, the circuit judge who heard and ruled upon appellant's motion for summary judgment was not the judge who presided at the trial. Appellant objected to the check being reoffered in evidence on the ground that it constituted a transaction with a person deceased, and was therefore inadmissible under the proscriptions of the dead man's statute. The objection was overruled and the check filed in evidence by the court.
After appellee concluded her direct examination, she was cross-examined by appellant's counsel. After completing his cross-examination covering matters testified to by appellee in chief, appellant's counsel then propounded to appellee a series of questions which were related a series of covered by her direct examination. These questions concerned testimony given by her in her pretrial deposition, none of which had been touched upon by appellee in her direct examination. These questions were propounded for the apparent purpose of laying the predicate for impeaching appellee's testimony, and for establishing appellant's affirmative defense of accord and satisfaction. We have carefully examined the questions propounded to appellee by appellant's counsel, together with the answers given thereto. It seems obvious beyond dispute that appellant interrogated appellee extensively concerning transactions and communications had by her with the decedent, none of which were in cross-examination of the testimony given by appellee on her direct examination. It is our view that appellant waived the protection of the dead man's statute both by having failed to object to the check...
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Waddoups v. Nationwide Life Insurance Co.
... ... court hearings in the case or in a similar case. In ... Sessions v. Summers, 177 So.2d 720, 722 (Fla. Dist ... Ct. App. 1965), the court ruled that waiver ... ...
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Waddoups v. Nationwide Life Ins. Co.
...statute for one court hearing constitutes a waiver for all court hearings in the case or in a similar case. In Sessions v. Summers, 177 So. 2d 720, 722 (Fla. Dist. Ct. App. 1965), the court ruled that waiver of the protection in a summary judgment hearing extended to the trial. In Finch v. ......
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Mathews v. Hines, 75-16-Civ-Oc.
...So.2d at 507. Failure to raise the statutory privilege, by timely objection, will also constitute a waiver. Sessions v. Summers, 177 So.2d 720, 721, 722 (1st D.C.A. Fla. 1965). "Once a waiver of the provisions of the Dead Man's Statute is made in a pending cause, it is waived for all furthe......
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McKinlay v. McKinlay
...e.g., Smith v. Silberman, 557 So.2d 78 (Fla. 3d DCA 1990); In re Estate of McCoy, 445 So.2d 680 (Fla. 2d DCA 1984); Sessions v. Summers, 177 So.2d 720 (Fla. 1st DCA 1965). Likewise, the accountant-client privilege can be waived in certain circumstances. Savino v. Luciano, 92 So.2d 817, 819 ......