Thrifty Super Market, Inc. v. Kitchener
| Decision Date | 04 November 1969 |
| Docket Number | No. 69--319,69--319 |
| Citation | 227 So.2d 500 |
| Parties | THRIFTY SUPER MARKET, INC., Appellant, v. Lillian KITCHENER and Leonard S. Kitchener, Appellees. |
| Court | Florida District Court of Appeals |
West & Goldman, Miami, and Michael Peter Weisberg, Miami, for appellant.
Alfred Gustinger and Bolles, Goodwin, Ryskamp & Ware, Miami, for appellees.
Before PEARSON, C.J., and CHARLES CARROLL and HENDRY, JJ.
The appellant was defendant below in a negligence action brought by the appellees. The cause was tried before a jury on the issue of the negligence of the defendant, its servants or employees, in striking appellee Lillian Kitchener with several super market 'buggies'. During the course of trial, counsel for plaintiffs announced the completion of their case; thereafter, counsel for defendant moved for a directed verdict, upon which motion the court deferred ruling. At that point in the proceedings, counsel for plaintiffs then requested leave to reopen their case to present further evidence. Objection was made by counsel for the defendant on the ground that plaintiffs had already rested.
The court overruled the objection, thereby allowing the plaintiffs to continue their case. 1
Appellant's first point on appeal is that the court erred in granting the plaintiff's request to reopen their case after they had rested. This question is directed to the sound judicial discretion of the trial court, and the exercise of such discretion will not be reversed upon appeal unless the appellant demonstrates a clear showing of abuse. Pavlis v. Atlas-Imperial Diesel Engine Company, 121 Fla. 185, 163 So. 515; Eli-Witt Cigar and Tobacco Company v. Matatics, Fla.1951, 55 So.2d 549; Williamson Candy Company v. Lewis, Fla.App.1962, 144 So.2d 522. We do not view the record on appeal as demonstrating that an abuse of discretion occurred herein.
The appellants also objected to part of the evidence which was submitted after the plaintiffs had reopened their case, to-wit: the reading of the deposition of one of the plaintiffs, Leonard Kitchener. The ground underlying this point on appeal is that this plaintiff was not shown to be outside of the one hundred mile jurisdictional limit of the court as required by Rule 1.280(d), Florida Rules of Civil Procedure, 30 F.S.A. However, the record indicates that defense counsel objected to the reading of the deposition on the sole ground that the plaintiffs should not have been allowed to reopen their case after resting. In view of the fact that the appellant failed to raise the specific legal objection on which it now relies to the trial court, we must reject its contention that the court abused its discretion by virtue of admitting into evidence the reading of the deposition. See 32 Fla.Jur. Trial § 53, 55; 2 Fla.Jur.Appeals § 82.
As its final point on appeal, the appellant also contends that the court improperly allowed counsel for the plaintiffs to tally up the separate damage claims and, for the first time, state the total amount requested from the jury during the final rebuttal argument. This point is without merit, as a viewing of the record shows that the specific items of damage and the costs were enumerated by counsel in his initial closing argument to the jury, and we do not view his totalling of those figures during final rebuttal argument as constituting surprise. Cf. Florida East Coast Railway Co. v. Morgan, Fla.App.1968, 213 So.2d 632, 635.
For the reasons given above, the final judgment being appealed is hereby affirmed.
Affirmed.
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...Cigar & Tobacco Co. v. Matatics, 55 So.2d 549 (Fla.1951); Dees v. State, 357 So.2d 491 (Fla. 1st DCA 1978); Thrifty Super Mkt., Inc. v. Kitchener, 227 So.2d 500 (Fla. 3d DCA 1969)); Gallagher v. L.K. Rest. & Motels, Inc., 481 So.2d 562 (Fla. 5th DCA 1986). Factors the trial court should con......
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