Wise v. W.U. Telegraph Co., G-232
| Decision Date | 29 July 1965 |
| Docket Number | No. G-232,G-232 |
| Parties | Clara B. WISE and Frank W. Wise, her husband, Appellants, v. The WESTERN UNION TELEGRAPH COMPANY, a corporation, Appellee. |
| Court | Florida District Court of Appeals |
Searcy & Sohn, Jacksonville, for appellants.
Loftin & Wahl, Jacksonville, for appellee.
We review a summary judgment for the defendant in an action for damages resulting from injuries received when a messenger boy employed by Western Union Telegraph Company, while operating his bicycle on a city sidewalk, struck a pedestrian.
The summary judgment was predicated upon a finding that there was not enough evidence tending to prove that the messenger boy was acting within the scope of his duties at the time of the accident to create a real issue of fact.
The most substantial item of evidence tending to establish this fact was an affidavit by Jacksonville Police Officer Mims who investigated the accident in which, among other things, he deposed that after the accident occurred a representative of Western Union came to the scene and 'stated in effect that the boy was working for Western Union and engaged in this work at the time of the accident.' Other evidence identifies this individual as Mr. E. B. Lester, delivery clerk, employed by the defendant, Western Union Telegraph Company.
On motion of the defendant, the affidavit of Officer Mims was stricken on the theory that the statement of Lester was privileged under Section 317.171, Florida Statutes, F.S.A.
The plaintiffs contend that other evidence is sufficient to withstand a motion for summary judgment, but this we do not decide because we conclude that the affidavit of Officer Mims was improperly stricken.
The accident occurred on a city sidewalk in Jacksonville. The messenger testified that he was operating his bicycle on the sidewalk because he had been forced onto the sidewalk by a truck improperly swerving in front of him so that it was necessary for him to operate his bicycle onto the sidewalk in order to avoid a collision with the truck.
Section 317.171 is in derogation of the common law and should be strictly construed in the sense that no situation should be held within its operation to which the legislature did not clearly intend to accord the privilege. On the other hand, the statute being in part at least designed to protect the constitutional right against self-incrimination, and to facilitate the ascertainment of the cause of accidents, it should not be so strictly construed as to defeat the legislative purpose.
Although accident reports are required only of the operators of vehicles and officers investigating accidents, it is settled that the privilege of the statute extends to all persons 'involved' in accidents. Williams v. Scott, Fla.App., 153 So.2d 18. It is also settled that the privilege extends to verbal statements as distinguished from written reports. Ippolito v. Brener, Fla., 89 So.2d 650; St. Germain v. Carpenter, Fla., 84 So.2d 556.
The plaintiffs first contend that the statute is not applicable because the injuries complained of were caused by a bicycle coming into contact with one of the plaintiffs and a bicycle is not a vehicle within the statute. Section 317.011. The messenger testified that the accident was precipitated by the improper operation of a truck and, if this testimony be true, the truck was 'involved' in the accident, thus bringing all persons 'involved' in the accident within the protection of the statute.
It is not every statement made to an officer that comes within the privilege granted by the statute. The statement must have some reasonable bearing upon an investigation properly undertaken by the officer and must be made by a person in some way 'involved' in the accident, and must be in some degree an accident report. See Goodis v. Finkelstein, Fla.App., 174 So.2d 600.
Mr. Lester was not present at the time of the accident, had no first hand knowledge of any matter affecting the circumstances of the accident, and the statement attributed to him was not with respect to the cause of the accident or the circumstances under which the...
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Combs v. State
...privilege does not extend to statements disclosing "the identity of a person involved in an accident." See Wise v. Western Union Telegraph Co., 177 So.2d 765 (Fla. 1st DCA 1965). Since the trial court reached the right result, albeit for the wrong reasons, the affirmance of the judgment by ......
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Woodward v. Duval Motor Co.
...to which the legislature did not clearly intend to accord the privilege.' " State v. Coffey, supra at 635; Wise v. Western Union Telegraph Co., 177 So.2d 765 (Fla. 1st DCA 1965). Given that construction, we do not consider it was within the rational contemplation of the legislature that the......
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State v. Riley
...212 So.2d 632 (Fla.1968), receded from on other grounds, Brackin v. Boles, 452 So.2d 540 (Fla.1984), and Wise v. Western Union Telegraph Company, 177 So.2d 765 (Fla. 1st DCA 1965). In addition, it has been long recognized that the accident report privilege is based on the privilege against ......
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Hoctor By and Through Hoctor v. Tucker
...time the case came to trial.2 Several Florida cases have apparently so held without discussing the point. In Wise v. Western Union Telegraph Co., 177 So.2d 765 (Fla. 1st DCA 1965), the court said that the privilege of the statute is extended to statements which have some reasonable bearing ......