Turner v. Modern Beauty Supply Co.

• Citation: 10 So.2d 488,152 Fla. 3
• Parties: TURNER v. MODERN BEAUTY SUPPLY CO., Inc.
• Decision Date: 20 November 1942
• Court: United States State Supreme Court of Florida

10 So.2d 488

152 Fla. 3

TURNER v. MODERN BEAUTY SUPPLY CO., Inc.

Florida Supreme Court

November 20, 1942

Rehearing Denied Dec. 7, 1942.

Appeal from Circuit Court, Dade County; Arthur Gomez, Judge.

Blackwell &amp Walker, of Miami, for appellant.

Knight & Green of Miami, for appellee.

CHAPMAN, Justice.

Suit was brought in the Circuit Court of Dade County, Florida, to recover damages for designated personal injuries as a result of a collision between a Ford truck of the defendant below and a motorcycle owned by Modern Beauty Supply Co., Inc., and operated by its employee George Raymond Eubanks, at the intersection of 6th Avenue and 19th Street N. W., in the City of Miami, Florida, on November 9, 1940. Plaintiff below sought to recover for its use and benefit money paid out to its employee, George Raymond Eubanks, under the Workmen's Compensation Act. The declaration alleged simple negligence on the part of the driver of defendant's truck and the issues tendered by pleas of not guilty and contributory negligence were submitted to a jury, resulting in a verdict and judgment for the plaintiff in the sum of $4,250. The appeal here is for the purpose of reviewing the verdict and judgment entered in the lower court.

Counsel for appellant pose for adjudication the question, viz: In an action for personal injuries sustained by the plaintiff in a collision between two motor vehicles, where the credible evidence demands a finding that the plaintiff, who was driving one of the vehicles, was guilty of negligence materially and proximately contributing to the happening of the collision, should not the jury be directed to return a verdict for the defendant? In support of this question counsel quote and emphasize the testimony given by certain witnesses offered by the plaintiff below, namely, Policemen Allen and Savage, and Robert Martin, Calhoun McFarland, L. E McCook, Carrington Turner, George Raymond Eubanks, and J. R Eubanks. It is urged that the testimony of plaintiff's witnesses, coupled with the admission of the plaintiff that he gave the motorcycle the gas and proceeded east on 19th Street in the face of obvious danger on the theory that under the law he had the right of way, was ipso facto contributory negligence. The negligence of the plaintiff, it is contended, is corroborated by the physical facts about the intersection and the photographs adduced conclusively sustain this contention. Counsel cite and rely upon G. Ferlita & Sons v. Beck, 143 Fla. 509, 197 So. 340; Union Bus Co. v. Matthews, 141 Fla. 99, 192 So. 811; Lindsay v. Thomas, 128 Fla. 293, 174 So. 418. Many cases from other jurisdictions, text-books and encyclopedias are cited to sustain their position. We have read the testimony appearing in the record and are familiar with our rulings in the cases cited.

The 'credible testimony' cited and relied upon to sustain contributory negligence on the part of the plaintiff which should bar a recovery is contradictory to and in conflict with the established law of Florida. It is true that this court in the case of Lindsay v. Thomas, supra, held that the plaintiff there was barred from recovery because of contributory negligence which involved an undue risk of harm on the theory that a reasonable man in the same position would not so expose himself. Contributory negligence is ordinarily a question for the jury. See Dunn Bus Service v. McKinley, 130 Fla. 778, 178 So. 865. The defendant's driver testified that he drove into the intersection at a speed of 25 miles per hour and a building at the corner obstructed his vision to the right and a city ordinance fixed the speed of motor vehicles at 30 miles per hour and the driver failed to observe the plaintiff until about the time of the collision of the two vehicles. The testimony clearly presented disputes and conflicts and under our system becomes an issue of fact for a jury. See Orr v. Avon Florida Citrus Corp., 130 Fla. 306, 177 So. 612; Toll v. Waters, 138 Fla. 349, 189 So. 393.

The second question posed for adjudication by counsel for appellant is viz.: In an action for personal injuries, should the plaintiff's attorney be permitted to deliberately and intentionally bring out on direct examination of his witness that the defendant carries liability insurance, when the existence of such insurance has no bearing on or relevancy to any of the issues involved?

The plaintiff George Raymond Eubanks, testified that for several weeks after the collision he was unable to recall many of the events connected with his injury. He was in the hospital for a long time and an employee of the insurance carrier desired a statement about the collision to send to the insurance carrier. The witness told the agent that his mind was not clear at that time about many of the events connected with the transaction, but acceded to the request of the agent and gave him a signed statement. When Eubanks was tendered for cross-examination, counsel for appellant interrogated him about the contents of the statement made by him and delivered to an agent of the insurance carrier. Apparent conflicts or contradictions existed in the testimony of Eubanks when testifying before the jury and the statement previously signed and delivered to the agent. Counsel for the appellant, out of turn and prior to the plaintiff resting his case, offered in evidence the signed statement of the plaintiff at a time when he was interrogating the witness on cross-examination. Counsel for plaintiff did not object and the trial court admitted the statement so offered by the defendant and limited its consideration by the jury only as it affected the witness' credibility. Counsel for appellant developed on cross-examination of the plaintiff that the insurance company had paid him compensation and hospital expenses and doctors' bills. Testimony was offered by counsel for the plaintiff of show his mental condition at the time of signing the contradictory statement. Likewise offered, in part, what the agent of the insurance company stated when the signed statement was obtained at the hospital, and it is contended that the lower court erred in denying appellant's motion for a mistrial. Counsel for appellant injected the insurance question into the trial of the case, as shown by the record, and when counsel for plaintiff below attempted to...