Upchurch v. Barnes, 140
| Court | Court of Appeal of Florida (US) |
| Citation | 197 So.2d 26 |
| Docket Number | No. 140,140 |
| Parties | Margaret Ann UPCHURCH, Appellant, v. Robbie Dean BARNES, Appellee. |
| Decision Date | 31 March 1967 |
Page 26
v.
Robbie Dean BARNES, Appellee.
Page 27
Karl O. Koepke of Law Office of William Whitaker, Orlando, for appellant.
Jesse F. Sparks, Jr., and O. Douglas Wolfe, Jr., of Gurney Gurney & Handley, Orlando, for appellee.
CROSS, Judge.
Plaintiff appeals a judgment rendered on a jury verdict in favor of defendant and from an order denying her motion for a new trial arising out of an automobile accident.
On the night of March 24, 1961, plaintiff's husband, as driver, and plaintiff, as passenger, were proceeding east on Second Street in Sanford, Florida, in a 1955 Dodge station wagon, and defendant was traveling south on Myrtle Avenue in a 1960 Ford owned by him. At the intersection the cars collided. As a result of the collision plaintiff's husband was killed, and plaintiff suffered injuries.
Plaintiff brought suit on two separate causes of action, one for the wrongful death of her husband, and the other for the personal injuries she received. The action was tried before a jury upon issues of negligence, gross negligence, contributory negligence and damages. The jury returned a verdict for the defendant. Plaintiff's motion for a new trial was denied, and the court entered final judgment for the defendant. It is from this judgment that the appeal is taken. Four points are raised by plaintiff on appeal.
The first point on review questions the correctness of the trial court's ruling allowing plaintiff only three peremptory challenges instead of six. We find that it is unnecessary and inappropriate to comment on the correctness of the trial court's ruling.
The record shows that the plaintiff only exercised two of the three challenges authorized under the ruling, and for that reason, if an error occurred, it was harmless error. Houck v. Urov, Fla.App.1966, 183 So.2d 610. The court in Houck v. Urov, supra, stated:
'* * * it is the recognized rule that '(a) case will not be reversed because error is committed by the court in a ruling on a peremptory challenge where no harm results to the objecting party
Page 28
from such ruling. Accordingly the fact that a party is allowed more or less than the legal number of peremptory challenges, or that a peremptory challenge is improperly overruled, is not cause for reversal of the case in the absence of prejudice to the complaining party.' 5A C.J.S. Appeal & Error § 1708b. See Felker v. Johnson, 1936, 53 Ga.App. 390, 186 S.E. 144; Ralston v. Toomey, Tex.Civ.App.1951, 246 S.W.2d 308.'Plaintiff's second contention is that she was so prejudiced as to not have received a fair trial by refusal of the trial court to permit the investigating officer to testify as to his opinion of (a) point of impact, (b) point of impact on each vehicle, (c) speed of the vehicles at the time of impact, (d) which motor vehicle entered the intersection first. At the trial the court refused to allow the investigating officer...
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Demoulas v. Demoulas
...some material way. Id. at 117-118." Andras v. Marcyoniak, 13 Mass.App.Ct. 1043, 1044, 433 N.E.2d 1260 (1982), citing Upchurch v. Barnes, 197 So.2d 26, 27-28 (Fla.Dist.Ct.App.1967). Cf. Rickett v. Hayes, 256 Ark. 893, 895-896, 511 S.W.2d 187 (1974). When a new trial is sought in a civil case......
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Hall v. State, 74061
...of his expertise. Rowe v. State, 120 Fla. 649, 163 So. 22 (1935); Kelly v. Kinsey, 362 So.2d 402 (Fla. 1st DCA 1978); Upchurch v. Barnes, 197 So.2d 26 (Fla. 4th DCA 1967). See § 90.702, Fla.Stat. (1989). Although Balmer may be qualified to offer expert testimony on various religious subject......
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Wilson v. Ceretti, 55948
...on the instant subject. Compare National Sanitary Rag Co. v. Lawrence, 33 Cal.App.2d 198, 91 P.2d 120, 121 (1939); Upchurch v. Barnes, 197 So.2d 26, 27--28 (Fla.App.1967); Bailey v. Deverick, 142 So.2d 775, 776--777 (Fla.App.1962); Florence v. City of Chicago, 76 Ill.App.2d 43, 221 N.E.2d 7......
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Seaboard Air Line R. Co. v. Lake Region Packing Ass'n, 1338
...v. Crosby, 1907, 53 Fla. 400, 43 So. 318; Central Hardware Co. v. Stampler, Fla.App.1965, 180 So.2d 205; Upchurch v. Barnes, Fla.App.1967, 197 So.2d 26, 19 It appears from the defendant's opening argument that the complexities of moving a railroad freight car from Florida to Philadelphia ar......
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Demoulas v. Demoulas
...some material way. Id. at 117-118." Andras v. Marcyoniak, 13 Mass.App.Ct. 1043, 1044, 433 N.E.2d 1260 (1982), citing Upchurch v. Barnes, 197 So.2d 26, 27-28 (Fla.Dist.Ct.App.1967). Cf. Rickett v. Hayes, 256 Ark. 893, 895-896, 511 S.W.2d 187 (1974). When a new trial is sought in a civil case......
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Hall v. State, 74061
...of his expertise. Rowe v. State, 120 Fla. 649, 163 So. 22 (1935); Kelly v. Kinsey, 362 So.2d 402 (Fla. 1st DCA 1978); Upchurch v. Barnes, 197 So.2d 26 (Fla. 4th DCA 1967). See § 90.702, Fla.Stat. (1989). Although Balmer may be qualified to offer expert testimony on various religious subject......
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Wilson v. Ceretti, 55948
...on the instant subject. Compare National Sanitary Rag Co. v. Lawrence, 33 Cal.App.2d 198, 91 P.2d 120, 121 (1939); Upchurch v. Barnes, 197 So.2d 26, 27--28 (Fla.App.1967); Bailey v. Deverick, 142 So.2d 775, 776--777 (Fla.App.1962); Florence v. City of Chicago, 76 Ill.App.2d 43, 221 N.E.2d 7......
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Seaboard Air Line R. Co. v. Lake Region Packing Ass'n, 1338
...v. Crosby, 1907, 53 Fla. 400, 43 So. 318; Central Hardware Co. v. Stampler, Fla.App.1965, 180 So.2d 205; Upchurch v. Barnes, Fla.App.1967, 197 So.2d 26, 19 It appears from the defendant's opening argument that the complexities of moving a railroad freight car from Florida to Philadelphia ar......