EARL K. SHALLEY, APPELLANT,
v.
EILEEN FIORE AND JAMES FIORE, HER HUSBAND, APPELLEES
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The court held that the trial court erred in refusing to allow cross-examination regarding prior inconsistent statements about a back injury and in excluding the relevant court document.
During a personal injury trial, the defendant attempted to cross-examine the plaintiff about prior statements regarding a back injury made in a divorc…
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The appellant was defendant in the trial court and appeals from an adverse final judgment rendered upon a jury verdict, finding the appellant liable to the appellee-plaintiff for negligent conduct resulting in personal injury to the appellee. The gist of the injury sustained by the appellee was an injury to her back.
During the course of the cross-examination of the appellee-plaintiff, counsel on behalf of the appellant attempted to elicit information from her relative to prior statements [made in a divorce proceeding], wherein she had indicated an earlier injury to her back. The trial judge refused to permit such interrogation and refused to permit into evidence the sworn bill of complaint in the original divorce proceedings, or a certified copy thereof, notwithstanding the fact that such sworn bill of complaint would have established either an inconsistent statement by the appellee as to her prior back injury, or would have rebutted appellee’s direct evidence on her case in chief: that she had never had a back injury which would have been an appropriate subject of defense.
Unfortunately, the trial judge was not presented with any authorities by counsel *19at the time of argument in respect to this matter, and the case of Corbett v. Berg, Fla. App.1963, 152 So.2d 196, had not been decided by this court and was not available. It appears that the trial judge erred in refusing to permit the interrogation by appellant’s counsel, and the introduction of the bill of complaint, as evidenced when the defense was pressing its case. Therefore, pursuant to the reasoning contained in the Corbett v. Berg case, supra, such evidence tending to go to the creditability of the witness [which would also be material as to the issue of liability in accordance with the decision of Central Mutual Insurance Company v. Newman, Fla.App.1960, 117 So.2d 41], this cause is remanded to the trial court, with directions to grant a new trial to the appellant both on the issues of liability and damages.
Reversed and remanded, with directions.
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Fiore v. Shalley, 166 So. 2d 754 (Fla. 1964)…Certiorari denied without opinion. 161 So. 2d 18.…
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Brown v. McARTHUR Dairies, Inc., 280 So. 2d 520 (Fla. 3d DCA 1973)…idence of a prior accident in which the plaintiff was involved. We think that the testimony which was developed upon cross-examination was proper for the purpose of impeaching the prior testimony of the plaintiff. See Shalley v. Fiore, Fla.App.1964, 161 So. 2d 18. Second, it is urged that the court erred in denying the plaintiff-appellant the right to exercise one of her remaining peremptory challenges. The situation arose [*522] after the appellant had tendered the jury. It is pointed out that the appellan…
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Davidson v. Eddings, 262 So. 2d 232 (Fla. 1st DCA 1972)…DONALD K., Acting C. J., and WIGGINTON, J., concur. . Brickley v. Atlantic Coast Line R. Co., 153 Fla. 1, 13 So. 2d 300 (Fla.1943). . IV Wigmore on Evidence § 1066 (3d ed.). . Hicks v. Daymude, 190 So. 2d 6 (1 Fla.App.1966). . Shalley v. Fiore, 161 So. 2d 18 (3 Fla.App.1964). . Corbett v. Berg, 152 So. 2d 196, 197 (3 Fla.App.1963). . West v. Carpenter, 366 S.W. 2d 826 (Ct.Civil App. of Tex.1963). . Kesmarki v. Kisling, 400 F. 2d 97, 102 (6th Cir. 1968). . Phillips v. Dow Chemical Company, 247 Miss.…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Cent. Mut. Ins. Co. v. Newman, 117 So. 2d 41 (Fla. 3d DCA 1960)
- Corbett v. Berg, 152 So. 2d 196 (Fla. 3d DCA 1963)