United Sand & Material Corp. v. Florida Indus. Commission, 36068

• Decision Date: 19 July 1967
• Docket Number: No. 36068,36068
• Citation: 201 So.2d 451
• Court: Florida Supreme Court
• Parties: UNITED SAND & MATERIAL CORPORATION and Glens Falls Insurance Company, Petitioners, v. The FLORIDA INDUSTRIAL COMMISSION and Alfred N. Munson, Respondents.

Page 451

201 So.2d 451

UNITED SAND & MATERIAL CORPORATION and Glens Falls Insurance Company, Petitioners, v. The FLORIDA INDUSTRIAL COMMISSION and Alfred N. Munson, Respondents.

No. 36068.

Supreme Court of Florida.

July 19, 1967.

Monroe, E. McDonald, of Sanders, McEwan, Schwarz & Mims, Orlando, for petitioners.

Leonard V. Wood, of Whittaker, Pyle & Wood, Orlando, for respondent.

O'CONNELL, Chief Justice.

Claimant, Alfred N. Munson, suffered a myocardial infarction while at work on August 20, 1965. After an interview between claimant and the carrier's adjuster, which interview was recorded in shorthand and later transcribed by a court reporter, the employer-carrier refused to accept the heart attack as compensable. This refusal was based on admissions by claimant at the interview that his work activities on the morning he suffered the attack were normal or routine and did not involve unusual strain or overexertion. Victor Wine & Liquor, Inc. v. Beasley, Fla.1962, 141 So.2d 581. A claim was filed and after a hearing the deputy entered an order finding the heart attack to be compensable and the claimant to be permanently and totally disabled. He awarded compensation accordingly. The full commission affirmed the deputy and the employer-carrier seeks review here.

For their first and second points the petitioners contend that the deputy erred in refusing to permit their attorney to use the transcription of the interview between claimant and the adjuster in cross-examining claimant at the hearing, and in refusing to allow the court reporter to testify from her shorthand notes made at the interview. We agree that the deputy committed error in both rulings.

At the hearing the claimant testified that immediately prior to his heart attack he had performed work not routine to his duties which involved unusual strain and exertion. On cross-examination counsel for the petitioners asked claimant if he remembered the subject interview and the court reporter recording what was said. He replied in the affirmative. It became apparent that petitioner was going to use the transcript of the interview as a basis for asking questions which would impeach the claimant's testimony. On objection by the claimant's counsel the deputy ruled that the transcript could not be so used because the witness had not signed the statement and had not been furnished with a copy thereof. The deputy's ruling seems to have been based upon F.S. Sec. 92.33, F.S.A.

Claimant admits that F.S. Sec. 92.33, F.S.A. does not apply to workmen's compensation proceedings. Nevertheless, he argues that the policy of protecting injured persons against being disadvantaged by statements taken of them empowered the deputy commissioner to deny use of the statement in this case. He also argues that F.S. Sec. 440.29(1), F.S.A., which frees such proceedings from technical or formal rules of procedure in order that they may be conducted so as to best ascertain the rights of the parties, authorized the deputy to rule as he did here.

We agree that F.S. Sec. 92.33, F.S.A. does not apply to workmen's compensation proceedings, but we cannot agree that the policy expressed therein can be utilized to prevent an employer from testing the truthfulness of a witness by impeachment as was done in this case. Nor can the freedom from formal procedures authorized by Sec. 440.29(1) operate to deny a party the opportunity to impeach a witness by showing prior contradictory statements. The latter statute might mean that the traditional procedure ordinarily followed in impeaching a witness might be relaxed, but it cannot mean that the accepted procedure is unavailable. In the instant case the petitioner's attorney apparently set out to follow the procedure prescribed by statute and case law. F.S. Sec. 90.10, F.S.A. Urga v. State, Fla.App.1958, 104 So.2d 43.

It is entirely proper to use a transcript or memorandum of prior statements of a witness as a basis of cross-examination in an effort to attack the credence to be placed in his statements made at hearing or trial. Lindberg v. State, 1938, 134 Fla. 786, 184 So. 662 and Urga v. State, supra. It is unnecessary that the memorandum or transcript be placed in evidence to be used for this purpose. Urga v. State, supra. Further, the original notes, memorandum or other document made contemporaneously with or soon after a transaction or event may be used by a witness as a basis of testimony given at a later time by the person who made the notes or memorandum. Volusia County Bank v. Bigelow, 1903, 45 Fla. 638, 33 So. 704; Davis v. State, Fla.1904, 36 So. 170 and Lindberg v. State, supra. Such a memorandum is not admissible as substantive evidence. Lindberg v. State, supra. But under the decision in Montgomery Ward & Co. v. Rosenquist, Fla.App.1959, 112 So.2d 885, a transcript of notes of a court reporter, reflecting the statement of an agent of a party, was held properly admitted in evidence as a 'past recollection recorded.'

We therefore hold that the deputy erred in ruling that the petitioners could not use the transcribed notes for purpose of cross-examination and that the court reporter could not testify by referring to her original notes. These errors were not harmless.

This holding requires that the orders of the deputy and the full commission be quashed and the cause remanded for further proceedings. It is therefore unnecessary that we consider the other questions presented by the petitioners.

Accordingly, the writ of certiorari is issued, the orders of the deputy and full commission are quashed and the cause remanded for further proceedings.

It is so ordered.

THORNAL, CALDWELL and ERVIN, JJ., concur.

DREW, J., dissents with opinion.

DREW, Justice (dissenting).

It is stated in the opinion by Mr. Chief Justice O'Connell '(w)e agree that F.S. Sec. 92.33, F.S.A. does not apply to workmen's compensation proceedings, but we cannot agree that the policy expressed therein can be utilized to prevent an employer from testing the truthfulness of a witness by impeachment as was done in this case.' I find nothing in the statute ¹ that would preclude its applicability to workmen's compensation proceedings nor do I find any decision of this Court or any other appellate court in this state so holding. The only decision upon the subject that I am able to find is that of Fendrick v. Faeges, Fla.App.1960, 117 So.2d 858, where the trial court excluded from evidence a statement taken of a plaintiff in a negligence action prior to the institution of suit by counsel for the defendant without furnishing a copy thereof to the person making such statement as required by the statute. The District Court of the Third District sustained the ruling of the trial judge, saying '(c)learly, this statute makes inadmissible any statement by an injured person relating to his injuries or property damage growing out of an accident until it is shown that a copy of the statement made was furnished to the person making the same.'

The statute enacted in 1951 as Chapter 26482 was obviously designed to prevent the use of written statements taken of an injured party except under the conditions outlined in the statute. We can take judicial knowledge of the fact that written statements by any person made at the time they are given carry far more probative value before a court or jury than oral statements so made. If such statements are to be used as the statute said 'in any manner in any civil action relating to the subject matter thereof', the law provides and common justice requires that the person making such statement shall have an opportunity promptly to examine the same and then register any objection to the accuracy thereof rather than being required at some distant date in the future to pit his memory against a written document taken down and transcribed by a fallible human being.

I think this statute is clearly applicable in compensation cases. In express language it prohibits the use of such statements by an injured party 'with respect to any accident'. The use of the words in the statute 'in any civil action' does not preclude workmen's compensation cases from its operation. The rationale and purpose of such statute is clearly applicable to such cases. In most instances where injuries occur to a working man, he is usually without advice of counsel until the matter reaches the point of the filing of a formal claim and it would be manifestly unfair in these sort of proceedings to permit the employer or its carrier to go about taking written statements of the type here involved and then later introducing them in evidence without the defendant having seen said statements or in any way examining them at the time. In the proceedings before the deputy, claimant's attorney seemed to be of the view that for such statement to be within the ambit of the statute it had to be a signed statement. At one point in the proceedings employer's counsel stated to the deputy, 'Mr. deputy, this not a signed statement'. There is nothing in the statute requiring the same to be signed. In most instances such statements taken by a court reporter are not signed. It is a common practice to waive signatures even in formal proceedings. It is the use of the statement in evidence with the verity usually attached to such a document that is prohibited by the statute unless its requirements are complied with.

The majority opinion proceeds upon the assumption, as I understand it, that the use of the written statement in any respect on cross-examination was prohibited by the deputy. I do not think the record bears this out. The subject first came up upon the cross-examination of the claimant. He was asked, '(d)o you remember on October 5th when a man by the name of Frank McDonald come out to your house with this lady back here and asked you a lot of questions and she wrote them down, do you remember that? A That's right.' At this point counsel for the claimant objected and the following...