Wasden v. Seaboard Coast Line R. Co.

• Decision Date: 12 June 1985
• Docket Number: No. 83-1930,83-1930
• Citation: 474 So.2d 825,10 Fla. L. Weekly 1473
• Parties: 10 Fla. L. Weekly 1473 B.G. WASDEN, Appellant, v. SEABOARD COAST LINE RAILROAD CO., a corporation, Appellee.
• Court: Florida District Court of Appeals

Page 825

474 So.2d 825

10 Fla. L. Weekly 1473

B.G. WASDEN, Appellant, v. SEABOARD COAST LINE RAILROAD CO., a corporation, Appellee.

No. 83-1930.

District Court of Appeal of Florida Second District.

June 12, 1985.

Rehearing Denied Aug. 13, 1985.

Joel D. Eaton of Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin, P.A., and Beckham & McAliley, P.A., Miami, for appellant.

Ralph C. Dell and Peter J. Grilli of Allen, Dell, Frank & Trinkle, Tampa, for appellee.

CAMPBELL, Judge.

Appellant Wasden, plaintiff below, appeals an order granting defendant Seaboard Coast Line Railroad Company's post-trial motion for mistrial and new trial. We reverse.

Bobbie Wasden, a trainman with Seaboard, suffered serious injuries as a result of an accident that occurred while riding in a caboose owned and operated by Seaboard. As the train crossed a trestle over the Alafia River, the bridge collapsed and spilled the caboose and Wasden into the riverbed. Because Seaboard admitted liability for the accident prior to Wasden's trial, the single issue for the jury's consideration was the amount of Wasden's damages. One of the contested factual considerations relative to damages was whether Wasden was able to return to work at a comparable level of employment as when he was injured. The jury returned a verdict in the amount of $925,000.

At issue in this case on appeal is the propriety of certain comments Wasden's counsel made during his closing arguments, which formed the foundation for the trial judge's grant of a new trial. The following colloquy represents the only objection Seaboard's counsel made during the course of Wasden's attorney's closing argument:

[Mr. McAliley]: You know, it's only in the courtroom that you're going to hear that Bobby Wasden can go back out there. When this railroad makes a business decision not to spend the money to keep their bridges from collapsing, they also make the business decision--

MR. DELL: If the Court, please, that was not involved in this case, and this is improper.

THE COURT: Sustained. The Jury is instructed to disregard it.

MR. McALILEY: I'll rephrase it. When this railroad hires an employee, they hire that employee knowing that he has rights under this Federal Employer's Liability Act. They hire him knowing that if they get this man hurt through their fault, that they have to respond under the act.

After Seaboard's counsel delivered his closing argument during which he acknowledged Seaboard's responsibility for Wasden's injury and conceded that Wasden had suffered pain, lost some capacity for the enjoyment of life and lost past income of $50,000 to $60,000, Wasden's attorney gave his rebuttal, during which no objections were made. After the judge had charged the jury and the jury had retired to deliberate, Seaboard's counsel moved for a mistrial on the basis that the objected-to comment about the railroad's business decision not to repair the trestle, in effect, sought punitive damages and thereby prejudiced the jury. The judge took the motion under advisement.

After the court rendered a final judgment in accordance with the jury's verdict, Seaboard filed a motion for new trial and a renewed motion for mistrial. Seaboard argued that the "business decision" comment to which it had objected, and six other unobjected-to statements made during closing argument, were unsupported by the evidence. The court requested legal memoranda, and in its subsequent memorandum, Seaboard identified twelve additional statements that it considered objectionable, but also to which no objection had been made at trial. After a hearing on the motions, the court entered a written order granting Seaboard's motions for new trial and for mistrial.

After considerable struggle with the propriety of the order for a mistrial and a new trial, we conclude that the trial judge erred. Our struggle with this issue is primarily concerned with the proper scope of our appellate review and is due largely to the fact that this field has been plowed so many times and in so many directions that it is difficult, if not impossible, to find a clear path to a correct result. In arriving at our conclusions, we are first met with the problem that there was only the one objection to any of the matters relied on to support the trial judge's order. The one objection was sustained and a curative instruction given.

Turning first to the order granting a mistrial, while Seaboard's counsel did, after the jury retired, move for a mistrial based on the alleged prejudicial effect of Wasden's attorney's business decision comment, that motion was untimely. In State v. Cumbie, 380 So.2d 1031 (Fla.1980), the supreme court held that a motion for mistrial based on remarks made during the prosecutor's closing argument was untimely because it was not made until after the jury had been instructed and had retired to deliberate. The court held that the motion should have been made by the end of the prosecutor's closing argument so that the judge would have the opportunity to give additional instructions to cure any damage caused by the remark. Although Cumbie was a criminal case and involved the denial rather than the granting of a motion for mistrial, the same considerations apply to this case. The same conclusion, that a motion for mistrial raised only after the jury has been instructed and has begun deliberations is too late to preserve the issue for appeal, was reached in the civil case of Murray-Ohio Manufacturing Co. v. Patterson, 385 So.2d 1035 (Fla. 5th DCA 1980).

While the supreme court in Ed Ricke and Sons, Inc. v. Green, 468 So.2d 908 (Fla.1985) has approved a trial judge withholding ruling on a motion for mistrial until after the jury has returned a verdict, the court refused to remove the requirement that the objection and motion for mistrial must be made at the time the improper conduct occurs unless fundamental error is involved.

In his order granting a mistrial, the trial judge below found that the comment "business decision" was highly prejudicial and that, in spite of his instructions, the effect of the comment could not have been erased from the minds of the jurors and that, therefore, a mistrial was in order under the authority of Walton v. Robert E. Haas Construction Corp., 259 So.2d 731 (Fla. 3d DCA 1972), cert. denied, 265 So.2d 48 (Fla.1972). The distinguishing feature of the Haas case, however, is that the prejudiced party moved immediately for a mistrial. Absent such a timely motion, the grant of a mistrial was error in the absence of fundamental error. We find no fundamental error in regard to the "business decision" comment.

Turning next to the granting of a new trial, the trial judge recognized in his order that a timely objection is normally a necessary predicate to the grant of a new trial. Tyus v. Apalachicola Northern R.R. Co., 130 So.2d 580 (Fla.1961). Two exceptions to this rule have been carved out, however, both of which the trial court invoked. First, a new trial can be ordered, absent timely objection, if the error is "fundamental," Sears, Roebuck & Co. v. Jackson, 433 So.2d 1319 (Fla. 3d DCA 1983); and, second, a new trial can be properly granted "if the prejudicial conduct and its collective import is so extensive that its influence pervades the trial, gravely impairing a calm and dispassionate consideration of the evidence and the merits by the jury." Tyus, 130 So.2d at 587 (emphasis in original) (citing Seaboard Air Line Railroad Co. v. Strickland, 88 So.2d 519, 523 (Fla.1956) ).

It is in regard to the order for new trial that we must face the difficult issue of the scope or standard of review which we should apply. We conclude that whichever standard we apply our result is the same, yet we are again concerned that there is no clear path through the plowed field. While the trial judge invokes both "fundamental error" and "pervasive influence" standards, it appears to us, on close reflection, that he ultimately equates the "pervasive influence" he perceives in this case to "fundamental error." Fundamental error is reviewable on appeal as a matter of law. United States Life Insurance Co. v. Town & Country Hospital, 390 So.2d 71, 73 (Fla. 2d DCA 1980), review denied, 399 So.2d 1147 (Fla.1981); LeRetilley v. Harris, 354 So.2d 1213 (Fla. 4th DCA 1978). Where a trial judge grants a new trial on the basis of unpreserved error, it is not a matter of discretion and the ruling will be upheld only if the error is, as a matter of law, fundamental. Sears, Roebuck & Co. v. Jackson. Still, a trial judge may, within his broad discretion, grant a new trial where he finds conduct which is so pervasive as to make it appear the jury has acted on matters outside the record or from sympathy, prejudice or passion.

In such an event, however, we feel the trial judge should identify the actions of the jury he feels results from the pervasive influence. The identifying of those jury actions is more and different from the acts of the party that he concludes constituted the prejudice. In other words, he should not only clearly set forth the error he feels occurred, but also the result of that error. Baptist Memorial Hospital, Inc. v. Bell, 384 So.2d 145 (Fla.1980); Wackenhut Corp. v. Canty, 359 So.2d 430 (Fla.1978); Bennett v. Jacksonville Expressway Authority, 131 So.2d 740 (Fla.1961). Otherwise, the trial judge sits as the seventh juror with veto power, a situation recognized as improper in Laskey v. Smith, 239 So.2d 13, 14 (Fla.1970).

In this case, no one argues that the evidence will not support the verdict of the jury, remembering that this was a trial in which liability was admitted and the only issue for the jury was the amount of the damages suffered by appellant. It is significant to us that the trial judge did not find that the verdict was against the manifest weight of the evidence. He did not attempt to order a remittitur, probably because he could not illustrate from the record how the verdict was...