Warn Industries v. Geist

• Decision Date: 25 January 1977
• Docket Number: Nos. 75--740,75--939 and 75--940,75--751,s. 75--740
• Parties: WARN INDUSTRIES et al., Appellants, v. Raymond GEIST et al., Appellees.
• Court: Florida District Court of Appeals

Page 44

343 So.2d 44

WARN INDUSTRIES et al., Appellants, v. Raymond GEIST et al., Appellees.

Nos. 75--740, 75--751, 75--939 and 75--940.

District Court of Appeal of Florida, Third District.

Jan. 25, 1977.

Rehearing Denied March 2, 1977.

Talburt, Kubicki & Bradley, Jeanne Heyward, Miami, for appellants.

Preddy, Haddad, Kutner & Hardy, Virgin & Whittle, Podhurst, Orseck & Parks, Marlow, Mitzel & Ortmayer, Miami, for appellees.

Before PEARSON, HAVERFIELD and NATHAN, JJ.

NATHAN, Judge.

This is the consolidation of two appeals and two interlocutory appeals in a product liability action, namely: an interlocutory appeal by defendants Warn Industries, Warn-Belleview, Inc., and St. Paul Insurance Company, from a final judgment in favor of the plaintiffs, Raymond and Lorna Geist; an appeal by those defendants from an amendment to the final judgment; an interlocutory appeal by defendant St. Paul from an order denying its motion for entry of an order for contribution from defendant Four Wheel Parts Wholesalers based on the pro rata share that the jury, by its verdict, attributed to each defendant; and an interlocutory appeal by defendants Warn Industries and Warn-Belleview from an order denying their motion for entry of an order allowing contribution from defendant Four Wheel Parts Wholesalers.

The record in this case is lengthy. Suffice it to say, this action stems from an accident occurring on April 16, 1973, wherein plaintiff Raymond Geist suffered the loss of a thumb and two fingers as he was attempting to prepare a disabled vehicle for towing by use of a winch mechanism attached to his service station truck. Geist and his wife, Lorna, sued the manufacturer of the winch, Warn Industries and Warn-Belleview, Inc., (hereinafter referred to collectively as Warn), and Warn's insurer, St. Paul Insurance Company, for negligent design and manufacture and breach of warranty. Geist also sued his employee, Wheeler, who was operating the controls of the winch, and his insurer, as well as the distributors of the winch, Gulf Oil Corporation and Four Wheel Parts Wholesalers, for breach of warranty and negligence.

At the conclusion of the plaintiff's case, Gulf Oil and its insurer, and Wheeler and his insurer were voluntarily dismissed from the law suit. The jury returned a verdict in favor of the plaintiffs, finding that defendants Warn and Four Wheel Parts were guilty of negligence and of breaching their warranties, causing plaintiff's injuries; and that plaintiff was 15% Negligent, Warn was 60% Negligent and Four Wheel Parts was 25% Negligent. Total damages were assessed for Raymond Geist in the amount of $365,000, and for Lorna Geist in the amount of $35,000. No question is raised on appeal as to the amount of the verdicts. Judgment was entered for Lorna Geist in the sum of $29,750, and for Raymond Geist in the sum of $310,250, thus reflecting the 15% Comparative negligence. Subsequently, an amended final judgment was entered because of a $10,000 settlement with Wheeler and his insurer. Warn and St. Paul took two appeals, one from the judgment and the other from the amended judgment.

As their first point on appeal, defendants Warn and St. Paul contend that the court erred in allowing plaintiffs, over defendants' objections, to read into evidence, the following interrogatory and answer regarding a prior accident involving a Warn winch:

'If you have within the past five years received any complaint of injury or occurrence similar to those allegedly experienced by the plaintiff, please state for each such complaint its date.

Answer: December 18, 1971.'

This point is not well taken.

As a general rule, evidence of the occurrence or non-occurrence of a prior accident is admissible where it pertains to the use of the same type of appliance or equipment under substantially similar conditions. Railway Express Agency, Inc., v. Fulmer, 227 So.2d 870, 873 (Fla.1969). Such evidence is admissible, if the accident, is not too remote in time, for the purpose of showing the dangerous character of the instrumentality and defendant's knowledge thereof. See Chambers v. Loftin, 67 So.2d 220, 222 (Fla.1953). Also see Friddle v. Seaboard Coast Line Railroad Company, 306 So.2d 97 (Fla.1974), wherein the Florida Supreme Court expresses agreement with the dissenting opinion of Judge Mager in Seaboard Coast Line Railroad Company v. Friddle, 290 So.2d 85, 87--91 (Fla.4th DCA 1974), citing 70 A.L.R.2d 171, 172, as follows:

'. . . However, it has usually been held that only substantial similarity of conditions is required, and there is perhaps evident a trend--probably part of a general trend toward the more liberal admission of evidence--toward treating the question of sufficiency of similarity of conditions as primarily a matter for the trial court's discretion, and to freely admit the evidence of the prior accident together with evidence of variations in conditions, which is treated as going to weight rather than admissibility.'

In the instant case, we find that the trial court did not abuse its discretion in permitting the introduction into evidence of the reference to the prior accident where it was shown to have been a reasonably similar occurrence under similar circumstances.

The appellants' next point is that the court erred in denying a motion for directed verdict and in entering...