OLIVE ROSE LOVELL, APPELLANT,
v.
MARY BAKER HENRY AND CARL D. BAKER, APPELLEES
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The court held that the trial judge correctly denied the motion for mistrial because defense counsel's use of an unadmitted doctor's report was not prejudicial or inflammatory.
Plaintiff appealed a jury verdict in a personal injury action, arguing the trial court erred by denying a mistrial. The motion was based on defense co…
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Plaintiff in a personal injuries action arising from an automobile accident appeals from a final judgment of $3,000 entered pursuant to a jury verdict. The point urged by appellant for reversal is the trial court’s refusal to grant plaintiff’s motion for mistrial which motion was made during the course of defense counsel’s summation before the jury.
The particular conduct of defense counsel on which appellant grounded her motion for mistrial was the use by said defense counsel of a doctor’s report to refresh his memory during the course of his summation of the case before the jury. Appellant contends that the doctor’s report, which had not been admitted into evidence, was alluded to by defense counsel as if it were actually in evidence; and, further, that the said report contained notes written in large, red letters calculated to influence the jury when observed by its members. In refusing to grant plaintiff’s motion for mistrial, the trial judge manifested his belief that the doctor’s report was not alluded to in the fashion complained of and, further, that the notes written on the report were not such, nor were they used in a manner so as to have the effect on the jury about which plaintiff complained. Our review of the record leads us to conclude that the trial judge was correct in this regard.
It is well settled that counsel is accorded a wide latitude in making his argument to a jury. Whether the bounds of propriety in such regard have been exceeded, however, must be measured against the prejudicial effect, if any, that is likely to be had upon the jury. Schnedl v. Rich, 137 So.2d 1 (Fla.App.2d 1962). Jury arguments will not be considered grounds for mistrial unless they are highly prejudicial and inflammatory. H. I. Holding Company v. Dade County, 129 So.2d 693 (Fla.App.3d 1961).
No showing having been made that the conduct complained of in the case at bar is prejudicial or inflammatory, the judgment appealed is therefore
Affirmed.
BARKDULL, J., dissents.
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Metro. Dade Cnty. v. Dillon, 305 So. 2d 36 (Fla. 3d DCA 1974)…highly prejudicial and inflammatory, counsel’s statements made to the jury during closing arguments will not serve as a basis for reversing a judgment. Wise v. Jacksonville Gas Corporation, Fla.App.1957, 97 So. 2d 704; Lovell v. Henry, Fla.App.1968, 212 So. 2d 67; Broge v. State, Fla.App.1974, 288 So. 2d 280. In the instant case, the remarks complained of were not of such an inflammatory character as to mandate a new trial. Under their sixth point, appellants directly attack the size of the verdict, contend…
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Lan-Chile Airlines, Inc. v. Rodriguez, 296 So. 2d 498 (Fla. 3d DCA 1974)…view, the testimony and the comments of counsel were not so prejudicial or inflammatory as to require the trial judge to grant a new trial. See Americana of Bal Harbour, Inc. v. Kiester, Fla. App.1971, 245 So. 2d 121; Lovell v. Henry, Fla.App.1968, 212 So. 2d 67; Bieley v. Jennings Construction Corporation, Fla.App. 1968, 212 So. 2d 809, 811. Lastly, the appellant has raised a new point in the reply brief. Actually, the point is new only insofar as this appeal is concerned. Before the trial court, this iss…
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Pitts v. State, 307 So. 2d 473 (Fla. 1st DCA 1975)…expected to be elicited by defense counsel’s own prior remarks. (Frazier v. State, Fla.App. 1st 1974, 294 So. 2d 691) It is well settled that counsel is accorded a wide latitude in making argument to the jury. (Lovell v. Henry, Fla. App. 3rd 1968, 212 So. 2d 67; Frazier v. State, supra) jury arguments will not be considered grounds for mistrial nor reversal unless they are highly prejudicial and inflammatory. (H. I. Holding Company v. Dade County, Fla.App. 3rd 1961, 129 So. 2d 693) Sub judice we do not fin…
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- H. I. Holding Co. v. Dade Cnty., 129 So. 2d 693 (Fla. 3d DCA 1961)
- Schnedl v. Rich, 137 So. 2d 1 (Fla. 2d DCA 1962)