GROSS BUILDERS, INC., ETC., ET AL., APPELLANTS,
v.
DORMAN A. POWELL, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF FRANZ D. POWELL, DECEASED, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
In this wrongful death action arising from a child's drowning, the Florida District Court of Appeal addressed two issues of first impression: whether requests for admission denials can be used to impeach a managing agent witness, and whether parents' damages for mental pain and suffering should be measured by the child's remaining minority or the parents' life expectancies. The court reversed and remanded for a new trial, finding the impeachment method improper but the life expectancy jury instruction appropriate.
The court held that while the resident manager was properly subject to impeachment as a managing agent under the relevant rule of civil procedure, the method used—reading requests for admission denials made by his employer rather than the manager himself—was improper and erroneous. On the second issue, the court held that parents may properly be instructed that in determining damages for mental pain and suffering, the jury may consider the joint life expectancies of both the child and the parents.
[1] A party may impeach a managing agent of an adverse corporate party by reading into evidence the corporation's denials to requests for admission, provided the denials are…
[2] A party may not impeach a witness by introducing contradictory statements made by another individual, unless those statements can be attributed to the witness under some…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“We know of no authority, nor has any been cited to us, which supports the proposition that a witness may be impeached by the contradictory statements of someone else which cannot, under any theory, be attributed to the witness.”
Establishes that impeachment by requests for admission denials made by a third party (the employer) rather than the witness himself is improper and unsupported by law.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceFranz Powell, a three-year-old boy, drowned in a swimming pool at an apartment complex on February 25, 1980. His father brought a wrongful death actio…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Damages For Mental Pain And Suffering cases and more on FLexlaw
DANAHY, Judge.
We address two questions in this case, both of which are questions of first impression in Florida. The case reaches us as an appeal by the defendants in a wrongful death action from final judgment for the plaintiff entered upon a jury verdict.
Franz Powell, a three-year old boy, drowned on February 25, 1980, in a swimming pool at the apartment complex where he and his family resided. Franz’s father brought this action, as personal representative of Franz’s estate, against the owners and managers of the apartment complex. A jury returned a verdict for the plaintiff in the amount of $300,000, representing $150,000 to each of Franz’s parents.
The first issue concerns the use at trial of the apartment owner’s denials of the plaintiff’s requests for admission. The requests for admission and the denials were as follows:
3. Please admit that the swimming pool was adjacent to the playground area, on February 25, 1980.
Denied 5. Please admit that you were aware that minor children played in and around the pool area on/and before February 25, 1980.
Denied
6. Please admit that you were aware these minor children swam in the pool on/and before February 25, 1980.
Denied.
8. Please admit that on an occasion prior to February 25, 1980, another child had drowned in one of your pools.
Denied.
The plaintiff called as his first witness Mr. John Connally, the resident manager of the apartment complex. Mr. Connally’s testimony indicated that he was aware that children played in the pool area and swam in the pbol prior to February 25,1980. Following his testimony, the plaintiff was allowed to read to the jury the four requests for admission quoted above and the apartment owner’s denials of those requests. All of the defendants objected and moved for a mistrial. The objections were overruled and the mistrial denied. We hold that the trial judge erred in this respect and reverse for a new trial.
Florida Rule of Civil Procedure 1.450(a) reads in part as follows:
A party may call an adverse party or an officer, director, or managing agent of a public or private corporation or of a partnership or association which is an adverse party and interrogate him by leading questions and contradict and impeach him in all respects as if he had been called by the adverse party ....
The plaintiff defends the reading of the requests for admission and the denials as a legitimate effort to impeach Mr. Connally. The defendants respond by pointing out that Mr. Connally was called by the plaintiff as his own witness and, usually, one may not impeach his own witness. § 90.-608(2), Fla.Stat. (1981). We are satisfied, however, that Mr. Connally fell in the category of “managing agent” of the defendant owner of the apartment complex within the meaning of rule 1.450(a) and thus was subject to impeachment by the plaintiff. Our supreme court has twice discussed the meaning of the expression “managing agent” in this context. Seaboard Air Line Railroad Co. v. Ford, 92 So. 2d 160 (Fla.1956); Tucker Brothers, Inc. v. Menard, 90 So. 2d 908 (Fla.1956). Our holding that Mr. Connally was a managing agent of the defendant apartment owner is supported by those decisions. Further, we note that the term managing agent as used in the former corresponding federal rule received a broad, practical construction. 10 Moore’s Federal Practice (2d Ed.) § 611.03 at VI-166.
We have no difficulty, therefore, in finding that Mr. Connally was subject to impeachment by the plaintiff. However, the means utilized for this purpose were inappropriate. Section 90.608(2) provides that in the case of an adverse witness, a party calling that witness may contradict the witness by other evidence or may prove that the witness has made an inconsistent statement at another time. As the defendants point out, the denials to the requests for admission were made by Mr. Connally’s employer, not Mr. Connally. We know of no authority, nor has any been cited to us, which supports the proposition that a witness may be impeached by the contradictory statements of someone else which cannot, under any theory, be attributed to the witness.
Accordingly, we reverse and remand for a new trial. For purposes of that new trial, we address the second issue raised by the appellants.
The trial judge instructed the jury that under Florida’s Wrongful Death Act, the parents of a deceased minor child are entitled to recover mental pain and suffering from the date of injury. § 768.21(4), Fla.Stat. (1981). The judge then instructed the jury that “in determining the duration of such mental pain and suffering, you shall consider the life expectancies of the surviving parents.” The appellants argue that the parents’ recovery for mental pain and suffering must be measured by the remaining minority years of the child had the child lived, not by the life expectancies of the parents.
No party to this appeal has cited to us any Florida case addressing this question and our own research has revealed none. However, we find that the United States Court of Appeals for the Fifth Circuit has answered the question, in a case arising from Florida. Georgia Southern & Florida Railway v. Perry, 326 F. 2d 921 (5th Cir. 1964). The Florida statute in 1964 provided that parents of a deceased minor child could recover in a wrongful death action “such sum for the mental pain and suffering of the parent (or both parents) if they survive, as the jury may assess.” § 768.03(1), Fla. Stat. (1963). The present statute provides that damages in a wrongful death action may be awarded to each parent of a deceased minor child “for mental pain and suffering from the date of injury.” § 768.-21(4), Fla.Stat. (1981). Thus there is no significant difference, for present purposes, between the 1964 version of the statutory law and the current statutory provision.
In the Perry case, the trial judge allowed the parents of a deceased minor child to place before the jury the mortality tables which reflected the parents’ estimated life expectancies. The defendant argued on appeal that this was erroneous, but the federal court did not agree. The court said: “It appears that from the evidence the jury might have found that the mental pain and suffering would continue throughout the lifetime of the parents. As evidence of the probable lifetime length, the mortality tables showing life expectancy were admissible.” We agree with the philosophy and reasoning of the federal court in that case.
Therefore, we hold that in a wrongful death action, it is proper to instruct the jury that in determining the amount of an award to parents of a deceased minor child for mental pain and suffering, the jury may consider the joint life expectancies of the child and the parents.
REVERSED and REMANDED for a new trial.
BOARDMAN, A.C.J., and LEHAN, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Bellsouth Telecomms., Inc. v. Meeks, 863 So. 2d 287 (Fla. 2003)…child. Like the district court below, we are persuaded by the reasoning of the Second District Court of Appeal in calculating the appropriate measure of damages for bereaved [*292] parents under section 768.21(4). See Gross Builders, Inc. v. Powell, 441 So. 2d 1142 (Fla. 2d DCA 1983). Gross Builders held that parents’ damages should not be measured based on the remaining minority years of the child, but should be calculated based on the life expectancies of the parents. Id. at 1143-44. The court reached this c…
-
Meeks v. Fla. Power & Light Co., 816 So. 2d 1125 (Fla. 5th DCA 2002)…ection (4) which provides in pertinent part that “[e]ach parent of a deceased minor child may also recover for mental pain and suffering from the date of injury.” § 768.21(4), Fla. Stat. (1997) (emphasis supplied). In Gross Builders, Inc. v. Powell, 441 So. 2d 1142 (Fla. 2d DCA 1983), the court specifically rejected the argument that the parents’ claim for mental pain and suffering was limited to the period of the deceased minor child’s minority. Recognizing that the mental pain and suffering of the parents co…
-
McQUEEN v. Mohan W. Jersani, M.D., 909 So. 2d 491 (Fla. 5th DCA 2005)…es to the period of minority. In discussing calculation of damages based upon life expectancies, the court explained: Similarly, in this case [the minor son Kevin’s] pain and suffering could be lifelong. Thus, under Gross Builders [Inc. v. Powell, 441 So. 2d 1142 (Fla. 2d DCA 1983) 1]rationale, Kevin’s damages should be calculated based on his life expectancy. However, because it would be expected that a child would lose his or her parents due to natural causes during the child’s lifetime, a child’s pain and…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Seaboard AIR Line R.R. Co. v. Ford, 92 So. 2d 160 (Fla. 1955)
- Tucker Bros., Inc. v. Menard, 90 So. 2d 908 (Fla. 1956)
- Ga. S. & Fla. Ry. Co. v. Perry, 326 F.2d 921 (5th Cir. 1964)