Spanagel v. Love

Decision Date18 July 1991
Docket NumberNo. 90-1394,90-1394
Citation585 So.2d 317
PartiesHerman A. SPANAGEL and Elizabeth Spanagel, Appellants, v. Richard P. LOVE, Jr., et al., Appellees. 585 So.2d 317, 16 Fla. L. Week. D1849
CourtFlorida District Court of Appeals

Andrew A. Graham, and Robert M. Moletteire of Reinman, Harrell, Graham, Mitchell & Wattwood, Melbourne, for appellants.

Joseph W. Thomas, II, and J. Larry Hanks of Jeffery, Thomas & Marshall, P.A., Maitland, for appellees.

PETERSON, Judge.

This is an appeal of the denial of Herman A. Spanagel's motion for new trial and entry of final judgment. We vacate the final judgment, reverse the order of denial, and remand for a new trial.

During a jury trial in which each of the drivers involved in a motor vehicle accident was seeking damages from the other, counsel for Richard P. Love, Jr., one of the drivers, asked an investigating police officer who had not witnessed the accident: "In the course of your investigation of this accident, did you determine that there was any improper driving on the part of Mr. Love?" Counsel for Spanagel, the other driver, objected. The court sustained the objection, and Spanagel's attorney asked the court to instruct the jury to disregard the officer's "no" answer at the time the objection was being made. Before any further evidence was presented to the jury, Spanagel's attorney requested a mistrial. The request was denied. The requested instruction to the jury was not given; the reason is not apparent from the record, and the requested instruction may have been omitted through oversight.

The question and the answer given constituted prejudicial error. In Moore v. Taylor Concrete & Supply Co., Inc., 553 So.2d 787 (Fla. 1st DCA 1989), the court stated:

It is well settled that questions or allusions which suggest that a driver has or has not been charged with a traffic violation in connection with an accident constitute prejudicial error which, in appropriate circumstances, will warrant a new trial.

Moreover, in some circumstances the error has been deemed so harmful that a new trial was warranted even though the objecting party failed to move for a mistrial.

Moore, at 790-91 (citations omitted). While the question to the officer in the instant case did not include inquiry as to whether Love was charged with the accident, there can be no question that a reasonable person would conclude from the officer's response that Love was not charged. A more subtle comment was the basis for reversal in Riedel...

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9 cases
  • Rierson v. Deveau
    • United States
    • Florida District Court of Appeals
    • March 20, 2019
    ...testimony that a citation had been issued to other driver was improper and should have resulted in mistrial); Spanagel v. Love, 585 So.2d 317, 318 (Fla. 5th DCA 1991) (holding that statement by police officer that there was no improper driving on the part of defendant motorist required a ne......
  • Probkevitz v. Velda Farms, LLC
    • United States
    • Florida District Court of Appeals
    • September 9, 2009
    ...Officer Fernandez's opinion that Denise violated the traffic 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......
  • Diaz v. Fedex Freight E., Inc.
    • United States
    • Florida District Court of Appeals
    • January 15, 2013
    ...testimony that citation had been issued to other driver was improper and should have resulted in mistrial); Spanagel v. Love, 585 So.2d 317, 318 (Fla. 5th DCA 1991) (holding that statement by police officer that there was no improper driving on the part of defendant motorist required a new ......
  • Wainer v. Banquero
    • United States
    • Florida District Court of Appeals
    • July 22, 1998
    ...receive a traffic citation in connection with an accident may constitute prejudicial error warranting reversal. See Spanagel v. Love, 585 So.2d 317, 318 (Fla. 5th DCA 1991) (citing Moore v. Taylor Concrete & Supply Co., 553 So.2d 787, 790-91 (Fla. 1st DCA 1989)). Further, "evidence of a [pa......
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