JUANITA WILLIAMS AND JOE WILLIAMS, HER HUSBAND, APPELLANTS,
v.
ELLA MAE JOHNSON, APPELLEE
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Plaintiffs Williams appealed a trial court's order setting aside a jury verdict in their favor for negligence and granting defendant Johnson a new trial. The appellate court affirmed, finding no clear abuse of discretion by the trial judge in setting aside the verdict or in excluding part of plaintiffs' deposition.
The appellate court held that the trial judge did not clearly abuse his discretion in granting a new trial. Additionally, the court determined that the part of plaintiffs' deposition offered by defendant was admissible under Florida Rules of Civil Procedure, but the trial court did not clearly abuse its discretion in how it handled the evidence.
“an order of a trial judge granting a new trial is entitled to great weight by the reviewing court and that the burden is on the appellant to demonstrate a clear abuse of discretion”
Establishes the standard of review for new trial orders and places the burden on the appealing party.
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Join FLexlaw to unlock all legal intelligencePlaintiffs Juanita and Joe Williams brought suit against Ella Mae Johnson for injuries sustained in an automobile collision. Plaintiffs alleged that J…
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This is an appeal by the plaintiffs, Juanita and Joe Williams, from an order of the trial court setting aside and vacating a jury verdict awarding plaintiffs damages for injuries sustained in an automobile collision and granting defendant a new trial.
Plaintiffs brought suit alleging that defendant was negligent in making a left turn into the oncoming path of plaintiffs’ vehicle approaching from the opposite direction. The case was submitted to the jury on the issues of negligence, contributory negligence and damages. The jury returned a verdict in favor of plaintiffs and awarded damages. The trial court set aside the verdict and granted defendant a new trial on the grounds that the manifest weight of the evidence showed that plaintiffs were guilty of contributory negligence and that the court had erred in refusing to admit into evidence part of plaintiffs’ deposition offered by the defendant.
This court is called on to determine whether the trial judge clearly abused his discretion in granting the defendant a new trial. It is well established that an order of a trial judge granting a new trial is entitled to great weight by the reviewing court and that the burden is on the appellant to demonstrate a clear abuse of discretion. Russo v. Clark, Fla.1962, 147 So.2d 1; Cloud v. Fallis, Fla.1959, 110 So.2d 669. No such abuse has been shown here.
We now consider whether or not the refusal of the court to admit a part of plaintiffs’ deposition by the defendant was error. The court recognizes that under Florida Rules of Civil Procedure 1.21(d), 30 F.S.A., part or all of the deposition of an adverse party may be introduced into evidence as part of the opposing party’s case regardless of whether the deponent is available or not. Monsalvatge & Co. of Miami, Inc. v. Ryder Leasing, Inc., Fla.App.1963, 151 So.2d 453. The matter contained in such a deposition is subject to the normal rules of evidence and is subject to the trial court’s right to exclude such parts thereof as may be unnecessarily repetitious in relation to the party’s testimony on the stand. Merchants Motor Freight Co. v. Downing, 8 Cir., 227 F.2d 247. The part of the deposition of the plaintiff offered in evidence by the defendant was admissible. The appellant has failed to establish that the trial court clearly abused its discretion in granting a new trial. We, therefore, must affirm.
Affirmed.
SMITH, C. J., and WALDEN, J., concur.
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State v. Monsees, 301 So. 2d 109 (Fla. 4th DCA 1974)…izant of and totally agree with the well established rule that an order of a trial court granting a new trial is entitled to great weight and the appellant has the burden to demonstrate a clear abuse of discretion. Williams v. Johnson, Fla.App.1966, 183 So. 2d 582. But when the harmless error statute is applied to this record we regret to say it is out judgment that the abuse of discretion is clear. Accordingly, the order granting a new trial is reversed and the cause is remanded with directions to enter jud…
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Williams v. Johnson, 188 So. 2d 819 (Fla. 1966)…Certiorari dismissed without opinion. 183 So. 2d 582.…
Authorities Cited
- Cloud v. Fallis, 110 So. 2d 669 (Fla. 1959)
- Russo v. Nolan Clark, 147 So. 2d 1 (Fla. 1962)
- Merchs. Motor Freight, Inc. v. Downing, 227 F.2d 247 (8th Cir. 1955)
- Woods v. Woods, 151 So. 2d 453 (Fla. 2d DCA 1963)
- Monsalvatge & Co. OF Miami, Inc. v. Ryder Leasing, Inc., 151 So. 2d 453 (Fla. 3d DCA 1963)