Wofford Beach Hotel, Inc. v. Glass

• Decision Date: 22 December 1964
• Docket Number: No. 64-378,64-378
• Citation: Wofford Beach Hotel, Inc. v. Glass, 170 So.2d 62 (Fla. App. 1964)
• Parties: WOFFORD BEACH HOTEL, INC., a Florida corporation, Appellant, v. Mary GLASS and Max Glass, her husband, Appellees.
• Court: Florida District Court of Appeals

Page 62

170 So.2d 62

WOFFORD BEACH HOTEL, INC., a Florida corporation, Appellant, v.Mary GLASS and Max Glass, her husband, Appellees.

No. 64-378.

District Court of Appeal of Florida, Third District.

Dec. 22, 1964.

Rehearing Denied Jan. 12, 1965.

Paul P. Meltzer, Richard Yale Feder and Murray Goldman, Miami, for appellant.

Sherouse & Corlett, Richard M. Gale, Miami, for appellees.

Before CARROLL, HORTON and TILLMAN PEARSON, JJ.

TILLMAN PEARSON, Judge.

The appellees, Mary Glass and her husband, recovered a $30,000 judgment in a slip-and-fall case.The fall occurred in the lobby of appellant's hotel.We reverse and remand for a new trial.

The hotel on this appeal has urged first that the court erred in failing to direct a verdict for the appellant.Our examination of the record in light of the briefs and oral argument reveals an adequate basis for the verdict in the record.

Appellant's remaining points urge that it was entitled to a new trial because of certain procedural errors.The first procedural error claimed is the admission of testimony as to an experiment conducted by an expert on behalf of the plaintiff to prove the degree of coefficient of friction between an ordinary leather shoe and defendant's floor at the place of the accident.The objection made is that the experiment was not close enough in time and place to be relevant.We hold that the experiment was substantially similar and that the trial court correctly admitted the testimony of the expert.Huff v. Belcastro, Fla.App.,App.1961, 127 So.2d 476.

Appellant seeks a new trial upon the basis of remarks made by the trial judge and upon the admission into evidence of a prior consistent statement in order to avoid the effect of impeachment of one of plaintiff's principal witnesses by a prior inconsistent statement.Inasmuch as these two points arose out of the same matter in the trial court, we will discuss them together.

One of the plaintiff's most important witnesses was an elderly gentleman who was an eyewitness to the accident.On the stand he stated that he observed water in the area of the fall immediately after plaintiff's fall.The defense produced a prior inconsistent statement which was properly admitted as impeachment of the witness.The plaintiff attempted to re-establish this witness with a prior consistent statement.This statement was admitted.The admission of the prior consistent statement as a method of re-establishing plaintiff's witness was improper.SeeVan Gallon v. State, Fla.App.,1951, 50 So.2d 882.This Court has recently recognized this rule although noting an exception in the case where the prior consistent statement may be relevant to rebut the charge of recent fabrication.SeeJackman v. State, Fla.App., App.1962, 140 So.2d 627.The exception is not applicable here and the court committed error in allowing its introduction.The error of the admission of the prior consistent statement was aggravated by the trial judge's comments in the presence of the jury at the time of his ruling.It has frequently been pointed out that comments by a trial judge may have a devastating effect in the trial of the cause.City of Miami v. Williams, Fla.App.,1949, 40 So.2d 205.In the present instance the trial judge in ruling upon defendant's objection to the evidence gratuitously commented 'you cannot tie this man's hand behind his back and beat his other hand.'This uncalled for remark was objected to and motion for mistrial was made and denied.It is apparent that this remark coming at a crucial time in the trial after...