Zabner v. Howard Johnson's Inc. of Fla.

• Decision Date: 31 October 1969
• Docket Number: No. 2234,2234
• Citation: 227 So.2d 543
• Parties: Bertha Belle ZABNER, Appellant, v. HOWARD JOHNSON'S INCORPORATED OF FLORIDA, Appellee.
• Court: Florida District Court of Appeals

Page 543

227 So.2d 543

Bertha Belle ZABNER, Appellant, v. HOWARD JOHNSON'S INCORPORATED OF FLORIDA, Appellee.

No. 2234.

District Court of Appeal of Florida, Fourth District.

Oct. 31, 1969.

Horace E. Beacham, Jr., Palm Beach, for appellant.

John R. Beranek, of Jones, Adams, Paine & Foster, West Palm Beach, for appellee.

CROSS, Chief Judge.

Plaintiff-appellant, Bertha Belle Zabner, appeals from an order granting a new trial entered in favor of the defendant, Howard Johnson's, Inc., of Florida, in a cause of action for damages for breach of implied warranty and negligence. We reverse.

This is the second appearance of this cause in the appellate court. The plaintiff, Bertha Belle Zabner, while a patron of Howard Johnson's restaurant, ordered a dish of maple walnut ice cream. While plaintiff was consuming this ice cream at the restaurant, a piece of walnut shell concealed therein punctured the plaintiff's upper gums, fractured and damaged some of her teeth. In the first appearance in this court, the plaintiff appealed from a final summary judgment entered in favor of the defendant. The judgment was entered on the theory that the harmful substance, i.e., the piece of walnut shell, was natural to the product sold and could not be called a foreign substance. The trial judge applied the so-called foreign-natural test. In a decision which was of first impression in the State of Florida, this court reversed and remanded the cause for a new trial. We rejected the naturalforeign test, and determined that the question of whether food is fit for the purpose intended, although it contains harmful natural substances, should be based on what the consumer might reasonably expect to find in the food as served and not on what might be natural to the ingredients of food prior to preparation. Zabner v. Howard Johnson's, Inc., Fla.App.1967, 201 So.2d 824.

Upon remand the cause was tried before a jury. During cross examination the defendant questioned the plaintiff as to her prior litigation and listed certain claims and suits by the plaintiff prior to the time of the subject suit. These questions concerned several claims and suits in which she had been involved regarding personal injuries. The case was submitted to the jury and resulted in a verdict in favor of the plaintiff.

Thereafter the defendant filed motion for new trial asserting in essence that the court was in error in curtailing defendant's counsel in his cross examination of the plaintiff from inquiring into plaintiff's history of previous litigation. The court granted the motion. It is from the order granting the motion for new trial that the plaintiff now appeals.

Initially we are faced with reviewing an order granting a new trial. Being mindful and cognizant that a stronger showing of abuse of discretion is required to reverse an order granting a new trial than denying one, the question for our determination herein is strictly one of law as uncontaminated by factual conflict and thus the area of discretion is drastically diminished. Gatlin v. Jacobs Construction Co., Fla.App.1969, 218 So.2d 188.

This second appearance of this case also brings forth another factor of the law which is of first impression in the State of Florida, i.e., whether a plaintiff in a personal injury action may be cross examined as to claims or actions made or instituted by her prior to the present suit, and what limitations, if any, should be placed upon this cross examination.

The question of whether a complaining party may predicate error upon a trial court's action in restricting cross examination of a personal injury claimant as to her previous claims or actions and the consequent question whether such action was prejudicial, merely invoke specific application of the general rules governing cross examination of witnesses.

The purpose of cross examination is to get at the truth and, of course, too strict a limit on the scope of cross examination will hamper rather than achieve this end. This rule assumes that the direct testimony and cross examination will be on matters relevant to the case at bar. Relevancy describes evidence that has a legitimate tendency to prove or disprove a given proposition that is material as shown by the pleadings. Wigmore on Evidence, 3d ed. § 2. Relevancy has been defined as a tendency to establish a fact in controversy or to render a proposition in issue more or less probable. To be probable, evidence must be viewed in the light of logic, experience and accepted assumptions concerning human behavior.

There are many reported cases in other jurisdictions involving efforts on the part of both plaintiff and defendant to place before a jury evidence of past personal injury lawsuits. Most of the cases in which the question has been raised recognize that a plaintiff may properly be cross examined as to his previous...