Thomas v. Gottlieb
| Citation | 13 Fla. L. Weekly 341,520 So.2d 622 |
| Decision Date | 03 February 1988 |
| Docket Number | No. 4-86-2604,4-86-2604 |
| Parties | 13 Fla. L. Weekly 341 Ronald H. THOMAS, and Jeanette Thomas, Appellants, v. Edith GOTTLIEB and Geico, Appellees. |
| Court | Court of Appeal of Florida (US) |
Jane Kreusler-Walsh and Larry Klein of Klein & Beranek, P.A., West Palm Beach, and Philip M. Warren, Pompano Beach, for appellants.
John R. Hargrove of Tew, Jorden & Schulte, Fort Lauderdale, for appellees.
OWEN, WILLIAM C., Jr., (Retired), Associate Judge.
A vehicle operated by Mrs. Gottlieb struck the rear of a vehicle operated by Mr. Thomas. He alleged permanent injury. His wife claimed derivative damages. The jury's verdict found Mrs. Gottlieb eighty percent (80%) at fault. However, despite the uncontroverted expert testimony that Mr. Thomas had sustained a permanent injury from the accident, and despite a pretrial stipulation that the no fault threshold was not at issue, the verdict awarded zero damages to both Mr. Thomas and his wife. We reverse the judgment entered on that verdict.
Mr. Thomas testified that his knee was injured in the collision. Both his treating physician and the physician employed by the defendants to examine Mr. Thomas before trial testified that he sustained a permanent injury to the knee from the collision. There was, however, conflicting testimony which the jury was entitled to believe which would support its ostensible finding that Mr. Thomas was not injured in this collision, i.e., the admission by Mr. Thomas that he had previously injured that knee, and the testimony of Mrs. Gottlieb, her husband, a friend of theirs, and the investigating police officer all to the effect that at the scene of the accident Mr. Thomas did not appear to be injured. We, of course, do not assay the weight to be given this conflicting testimony. We report it merely to make clear that the error in allowing over objection certain of the investigating police officer's testimony cannot be considered harmless.
The officer had no independent recollection of the accident and could testify only on the basis of the information contained in the accident report. 1 The officer was asked by defense counsel whether he had seen any indication of injury to Mr. Thomas at the accident scene. In response, the officer stated that he must not have, since in the section of the accident report relating to personal injuries he had checked code 1, used by him to indicate no apparent injuries. Up to this point there was no impropriety, since observations made by the investigating police officer at the accident scene are not within the privilege of section 316.066(4) Florida Statutes. Brackin v. Boles, 452 So.2d 540 (Fla.1984). However, defense counsel pursued the matter. He further elicited from the officer that code 5 was used when the officer saw no injuries but a person involved in the accident complained of an injury, and then, over objection, elicited the further response that Mr. Thomas did not complain of any injury. This was error.
Statements made by Mr. Thomas to the investigating police officer were within the statutory privilege, Hill v. Allstate Insurance Company, 404 So.2d 156 (Fla. 3d DCA 1981). True, the officer's testimony related to what Mr. Thomas did not say, rather than to what he did...
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