SEMINOLE SHELL COMPANY, INC., A FLORIDA CORPORATION, APPELLANT,
v.
CLEARWATER FLYING COMPANY, INC., A FLORIDA CORPORATION, ROBERT D. BICKERSTAFFE, JR., AND COYLLE LEE CROSS, APPELLEES
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Seminole Shell Company sued defendants for damages resulting from an airplane accident, claiming negligence and breach of a bailment contract. The Florida District Court of Appeal reversed the trial court's judgment, finding that the trial court abused its discretion by allowing irrelevant evidence of insurance compensation and erred in rejecting expert testimony, warranting a new trial.
The court held that evidence of insurance compensation was entirely irrelevant to the issues in the case and should not have been admitted; the belated jury instruction attempting to correct the error was insufficient to neutralize its prejudicial effect on the jury; the exclusion of the expert's deposition was not clearly erroneous and reversible error was not found; and the record does not show that the requested jury instruction on concurrent negligence was actually presented to and refused by the trial court.
“We hold that this subject was entirely irrelevant to the issues in this case and that the particular words mentioned by plaintiff's witness did not occasion the admissibility of additional testimony concerning the extent of any recovery.”
Establishes that insurance evidence must be relevant to issues in the case and that inadvertent mention by a witness does not justify additional inquiry into insurance compensation.
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Join FLexlaw to unlock all legal intelligenceAppellant Seminole Shell Company's aircraft was damaged in December 1958 when Robert Bickerstaffe, an employee of Clearwater Flying Company, attempted…
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Appellant, Seminole Shell Company, Inc., plaintiff below, sued Appellees, defendants' below, Clearwater Flying Company, Inc., *544a Florida corporation, Robert D. Bicker-staff e, Jr., and Coylle Lee Cross, seeking damages resulting from an airplane accident. The complaint was in two counts, the first based on negligence and the second on breach of an oral contract of bailment. The defendant, Cross, was dismissed as a party defendant and upon trial verdict and judgment were rendered for defendants. Plaintiff appealed. We reverse for a new trial.
Appellant alleges error resulted during the trial when the Court permitted into evidence on cross examination a question concerning insurance coverage on the damaged aircraft. Plaintiff’s aircraft was damaged in December, 1958, when defendant, Bicker-staffe, an employee of Clearwater Flying Co., Inc., attempted to land at night without runway lights at the Clearwater Air Park.
During the trial, Harry Armston, an official of plaintiff corporation, was asked the following question by Plaintiff’s counsel:
“Back to the conversation that you and Mr. Bickerstaffe had prior to the time of this accident, would you please relate to the jury and the Court what the substance of that conversation was; tell us what the discussion was?”
Armston gave a rather lengthy answer including the following:
“Some, perhaps several days later I saw Mr. Bickerstaffe out at the Air Park again and suggested perhaps he go ahead and take the plane to the factory when he thought the weather suitable. He agreed. In that particular conversation I cautioned him very carefully about the need for a qualified pilot, properly certificated to fly the plane, because my insurwice would be void, the hull insurance on the airplane would be void if not flown by a properly certificated pilot. He informed me a day or two later that he was going to the factory and he would go.”
No objection or motion was made by either counsel but on cross examination, over objection, the following question was asked by defendant’s counsel:
“Mr. Armston, have you, or your company, been compensated by insurance for the loss incurred by you through this aircraft accident?”
Again, over objection of plaintiff’s counsel, the witness answered: “We were partially compensated for the loss, yes.”
The trial court in overruling both objections based its ruling on the inadvertent mention by the witness of “hull insurance” in answer to a question which was in no way calculated to elicit a response concerning insurance. The Court ruled plaintiff had opened the door to inquiry concerning insurance compensation although this subject had no relevancy to any issue being tried. However, the trial court of its own volition at the close of the evidence in its instructions to the jury apparently tried to correct any error or misunderstanding on this subject by a charge to the jury that the question of insurance had nothing to do with the issues being considered by the jury and should have no part in its verdict.
It is within the reasonable discretion of the Court to regulate and control the extent of cross examination of a witness and this discretion will not be disturbed unless it has been abused or substantial harm has been done to the complaining party. H. I. Holding Co. v. Dade County, Fla.App., 129 So.2d 693; Louette v. State, 152 Fla. 495, 12 So.2d 168. The subject of insurance has at times been permitted before the jury when relevant. Thus in Barnett v. Butler, Fla.App.1959, 112 So.2d 907, existence of insurance coverage was admitted as tending to prove the issue of ownership of a vehicle involved. Also, there is the oft discussed rule permitting the subject of insurance on voir dire under certain prescribed circumstances. Ryan v. Noble, 95 Fla. 830, 116 So. 766; Lambert v. Higgins, Fla., 63 So.2d 631. However, unless this subject is relevant to a matter before the Court or tends to establish a fact in issue any testi*545mony on this subject should he rejected. The Courts have been very careful to prevent the question of insurance from creeping into a case to keep any prejudice or favoritism from arising.
Where insurance coverage of a party has been inadvertently mentioned by a witness during the course of trial, it may become harmless error by appropriate charge by the court at that particular time. Wall v. Little, 102 Fla. 1015, 136 So. 676; Carls Markets, Inc. v. Meyer, Fla., 69 So.2d 789; Ryder v. Plumley, 138 Fla. 378, 189 So. 422; Rosenberg v. Coman, 134 Fla. 768, 184 So. 238, 239. In this particular case when the words “hull insurance” were inadvertently included in the witness’s testimony, the Court, no doubt, would have stricken the testimony and appropriately instructed the jury upon motion of either party. To the contrary, opposing counsel sought to make capital of this error by being permitted to solicit evidence as to whether or not the plaintiff had, as a matter of fact, been compensated through its insurance coverage. We hold that this subject was entirely irrelevant to the issues in this case and that the particular words mentioned by plaintiff’s witness did not occasion the admissibility of additional testimony concerning the extent of any recovery.
The evidence having been admitted for consideration by the jury, the belated attempt by the Court in its general instruction at the close of the case to correct this error was insufficient. The effect upon the minds of the jury can’t under such circumstance be so easily and completely neutralized. It has been uniformly held that the Court should act immediately to appropriately instruct the jury. Carls Markets, Inc. v. Meyer, supra.
Appellants have also urged error on the part of the trial court in refusing to admit portions of a deposition of J. T. Watson, an investigator of the Federal Aviation Agency. Plaintiff attempted to qualify Watson as an expert. Deponent stated he had been with the agency twenty two years, working in Florida from 1954 until January of 1960, that his present primary duties were the giving of flight tests, air craft and air port inspection, and investigation of accidents, and that he investigated the accident in question. The deposition was offered to place in evidence Watson’s opinion as to the landing approach flight path of the damaged plane immediately prior to the accident. There is little evidence in the record to show Watson’s length and quality of experience in the operation of air craft or of his knowledge of the airport in question. The matter of whether or nor a particular witness may qualify as an expert is within the discretion of the trial judge. A ruling thereon will not be disturbed unless it is clearly erroneous. Myers v. Korbly, Fla.App., 103 So.2d 215. It may well be that the witness can be qualified as an expert upon a re-trial of this case, but we do not find reversible error in the record before us.
Appellant further contends that the lower court erred in refusing to give an instruction to the jury concerning the right of plaintiff to recover should the jury find that the negligence of the defendant, Bicker-staff e, concurred jointly with an act of God to produce the alleged damages. Rule 2.6 (b), Florida Rules of Civil Procedure, 31 F.S.A., provides:
“ * * * it shall be the duty of the parties to the cause to file written requests that the court charge the jury on the law as set forth in such requests. The court shall then require counsel to appear before it for the purpose of a conference to settle the charges to be given. At such conference all objections shall be made and ruled upon and the court shall likewise inform counsel at said conference of such general charges as it will give.”
There appears to be nothing in the record indicating this particular instruction was actually presented to the lower court and that the court refused to give it. The instruc*546tion is included as a part of the record on appeal, but we find no reference to such instruction in the transcript of the trial. We cannot assume the court passed upon this instruction when the jury instructions were settled.
For the reasons set forth herein the judgment is reversed for a new trial.
KANNER, Acting C. J., and SHANNON, J., concur.
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Citator
Cited By (19 total)
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Carlyle Francis Dempsey v. Shell OIL Co., 589 So. 2d 373 (Fla. 4th DCA 1991)…nt basis for precluding cross-examination on that topic. We cannot agree. It is true that a trial court may regulate and control the extent of cross-examination within the bounds of reasonable discretion. Seminole Shell Co. v. Clearwater Flying Co., 156 So. 2d 543 (Fla. 2d DCA 1963). However, this discretion is circumscribed by the following principles: [W]hen the direct examination opens a general subject, the cross-examination may go into any phase, and may not be restricted to mere parts ... or to the spe…
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Valerie v. Stephens, 216 So. 2d 448 (Fla. 1968)…the range of subjects regarding which he can offer opinion testimony will not be reversed in absence of an abuse of discretion. Krohne v. Orlando Farming Corp., Fla.App.1958, 102 So. 2d 399; Seminole Shell Co. v. Clearwater Flying Co., Fla.App.1963, 156 So. 2d 543, 545. Secondly, the trial court may have considered that the opinion expressed was so vague and indefinite that it did not fairly and reasonably tend to demonstrate that an issue of fact existed as to negligence or contributory negligence. [*450] “[…
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Gormley v. GTE Prods. Corp., 587 So. 2d 455 (Fla. 1991)…motive to work); Cook v. Eney [*458] (admission of collateral source evidence is reversible error on the issue of liability, despite defendant’s assertion that it could affect only the issue of damages); Seminole Shell Co. v. Clearwater Flying Co., 156 So. 2d 543 (Fla. 2d DCA 1963) (error occurred when defense counsel asked whether plaintiff had been compensated by insurance, despite that it was plaintiff who first mentioned insurance; error could not be cured by instruction at close of case); cf. Sosa v. Kn…1 / 2
Previewing 3 of 19 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Carls Mkts., Inc. v. Meyer, 69 So. 2d 789 (Fla. 1953)
- Ryan v. Roscoe Noble, 95 Fla. 830 (Fla. 1928)
- Louette v. State, 152 Fla. 495 (Fla. 1943)
- H. I. Holding Co. v. Dade Cnty., 129 So. 2d 693 (Fla. 3d DCA 1961)
- Myers v. Korbly, 103 So. 2d 215 (Fla. 2d DCA 1958)
- Wall v. Little, 102 Fla. 1015 (Fla. 1931)
- Lambert v. Higgins, 63 So. 2d 631 (Fla. 1953)
- Barnett v. Butler, 112 So. 2d 907 (Fla. 2d DCA 1959)
- Ryder v. Plumley, 138 Fla. 378 (Fla. 1939)
- State v. Franklin, 134 Fla. 768 (Fla. 1938)