SCHIELD BANTUM COMPANY, INC., AN IOWA CORPORATION, APPELLANT,
v.
JAMES M. GREIF, APPELLEE; ALBERT RICKEL, INC., A FLORIDA CORPORATION, AND GEVAN NIXON, JR., APPELLANTS, V. JAMES M. GREIF, APPELLEE
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The court held that the trial court did not err in proceeding with five jurors after counsel consented, nor was the jury charge improper.
Appellants sought rehearing, arguing the court overlooked issues regarding proceeding with five jurors and an improper jury charge. The trial judge ex…
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These consolidated appeals are by defendants from a judgment based on a verdict won by the plaintiff-appellee in a motor vehicle accident case. Plaintiff was injured when his vehicle, stopped by a traffic signal, was struck from the rear by another motor vehicle, a mobile crane. The latter vehicle had suffered a brake failure caused by damage to a brake line which ran along the top of an axle instead of on the side. The action was against the manufacturer, the owner and the driver. The jury verdict was for the plaintiff and against all the defendants. After hearing argument and considering the briefs and record we find no reversible error as to liability but we reverse the judgment and remand for new trial on damages. Prejudicial error was committed at the trial when defendants were not allowed to show in evidence that for an injury received some years earlier the plaintiff had been assigned a 25% permanent partial disability in a workmen’s compensation case in Kentucky, and that some months prior to trial the plaintiff had written to the Kentucky Workmen’s Compensation Board requesting to have his case reopened. See Central Mutual Insurance Company v. Newman, Fla.App.1960, 117 So.2d 41; Corbett v. Berg, Fla.App.1963, 152 So.2d 196. The plaintiff had testified that for the past two years his condition of health was perfect. At the trial the evidence as to the extent of his injuries was not without conflict. Doctors who testified were not in agreement on disability percentages. The prior injury was brought out, and aggravation thereof was an element for consideration. The damages awarded were considerable. As appellants contend, there is no way of knowing whether the amount of the verdict would have been different if the jury had been shown this relevant evidence offered for the purpose of impeachment and to show that plaintiff’s condition prior to the accident may not have been as he testified. Accordingly, the judgment is reversed and the cause is remanded to the *268circuit court for a new trial on damages only.
ON PETITIONS FOR REHEARING
Appellants, petitioning for rehearing, suggest that on holding there was no reversible error as to liability and in granting a new trial on damages only, this court (1) overlooked the contention of appellants that error resulted when the case, which started with six jurors, was concluded with only five, and (2) overlooked a charge which appellants contended was improper. The items referred to were given consideration by this court, and as our filed opinion necessarily indicates were held to be without merit.
During the trial one of the jurors advanced pressing personal reasons for which the trial judge was inclined to and did excuse him from further participation, upon obtaining consent of counsel to proceed with the remaining five jurors. See 20 Fla.Jur., Jury, §§ 28, 29. Appellants’ counsel consented but contended on appeal consent was forced by circumstances. Clearly such was not the case. Had counsel wished to object and withhold their consent there was ample opportunity to have done so.
The material part of the charge in question was:
“ * * * Your function in this case is to determine the damages which he should recover and to decide which of the defendants are responsible. Under the evidence in this case, the plaintiff must recover a verdict against one or the other, or both of the defendants.”
On the facts disclosed in this case, the quoted charge was acceptable under the authority of New Deal Cab Company v. Stubbs, Fla. 1956, 90 So.2d 614, and Ringler v. McVeigh, Fla.App. 1959, 109 So.2d 606.
Accordingly the two petitions for rehearing filed on behalf of the appellants are denied.
Also, the petition for rehearing filed on behalf of the appellee has been considered and is hereby denied.
PER CURIAM.
Appellants, petitioning for rehearing, suggest that on holding there was no reversible error as to liability and in granting a new trial on damages only, this court (1) overlooked the contention of appellants that error resulted when the case, which started with six jurors, was concluded with only five, and (2) overlooked a charge which appellants contended was improper. The items referred to were given consideration by this court, and as our filed opinion necessarily indicates were held to be without merit.
During the trial one of the jurors advanced pressing personal reasons for which the trial judge was inclined to and did excuse him from further participation, upon obtaining consent of counsel to proceed with the remaining five jurors. See 20 Fla.Jur., Jury, §§ 28, 29. Appellants’ counsel consented but contended on appeal consent was forced by circumstances. Clearly such was not the case. Had counsel wished to object and withhold their consent there was ample opportunity to have done so.
The material part of the charge in question was:
“ * * * Your function in this case is to determine the damages which he should recover and to decide which of the defendants are responsible. Under the evidence in this case, the plaintiff must recover a verdict against one or the other, or both of the defendants.”
On the facts disclosed in this case, the quoted charge was acceptable under the authority of New Deal Cab Company v. Stubbs, Fla. 1956, 90 So. 2d 614, and Ringler v. McVeigh, Fla.App. 1959, 109 So. 2d 606.
Accordingly the two petitions for rehearing filed on behalf of the appellants are denied.
Also, the petition for rehearing filed on behalf of the appellee has been considered and is hereby denied.
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Coleman v. Coleman, 191 So. 2d 460 (Fla. 1st DCA 1966)…llees insist that it was not error to deny such examination under the circumstances and that the error, if any, was harmless because the testimony of witness Olivier was at most cumulative. We agree. Appellants cite Schield Bantum Company v. Greif, 161 So. 2d 266 (Fla.App.1964), Collins v. Farley, 147 So. 2d 593 (Fla.App.1962), and Central Mutual Insurance Company v. Newman, 117 So. 2d 41 (Fla.App.1960), in support of their contention that the court committed reversible error in denying such examination, but…
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Davis v. Sobik's Sandwich Shops, Inc., 351 So. 2d 17 (Fla. 1977)…gligence on the part of plaintiff was concerned. ... Id. at 764. Similarly, the courts in City of St. Petersburg v. Blankenhorn, supra, and Ringler v. McVeigh, supra, affirmed directed verdicts as to liability. See also Schield Bantum Co. v. Greif, 161 So. 2d 266 (Fla.3d DCA 1964), and Mansell v. Eidge, 179 So. 2d 624 (Fla.3d DCA 1965). In arriving at its decision below, the Fourth District Court of Appeal relied primarily on a decision of the Third District Court of Appeal, Blakely v. Pahler, 253 So. 2d 14…
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Garland B. Stafford v. S. Bell Tel. & Tel. Co., 179 So. 2d 232 (Fla. 2d DCA 1965)…ee no purpose in retrying the case on the issue of liability. We feel that the error determined herein bears solely on the issue of damages, and, therefore, remand the cause for a new trial on damages only. Schield Bantum Co. v. Greif, Fla.App.1964, 161 So. 2d 266. See also Jesters v. Taylor, Fla.1958, 105 So. 2d 569. ALLEN, C. J., and SMITH, J., concur.…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- NEW Deal CAB Co. v. Stubbs, 90 So. 2d 614 (Fla. 1956)
- 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)
- Tillie Ringler and Sam Ringler v. McVEIGH, 109 So. 2d 606 (Fla. 3d DCA 1959)