CHARLES A. MCKAY, APPELLANT,
v.
JAMES B. PERRY ET AL., APPELLEES
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
McKay sued the Perrys for injuries from a dog bite on their property but suffered a directed verdict after failing to prove the Perrys owned the dog. The appellate court reversed, holding that the trial court erred in excluding testimony about an alleged admission by Perry that he owned a pointer dog matching McKay's description.
Yes. The trial court erred in excluding Mulder's testimony regarding Perry's alleged admission of dog ownership. Perry's admission to owning a brown and white pointer would constitute an exception to the hearsay rule and would be admissible as substantive evidence, and such testimony was sufficiently established during the proffer to warrant admission.
[1] A party may introduce testimony regarding an out-of-court statement made by an opposing party as an admission, admissible as an exception to the hearsay rule.
[2] An admission by a party opponent may be introduced as substantive evidence of the truth of the matter asserted.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“If Perry told Mulder that he owned a brown and white pointer, this would have constituted an admission which would be admissible as an exception to the hearsay rule.”
Establishes the legal principle that party admissions are exceptions to the hearsay rule
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceMcKay called Mrs. Perry about purchasing the Perrys' boat and drove to an address to view it. While there, he was bitten on the leg by a brown and whi…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Proffer Of Evidence cases and more on FLexlaw
GRIMES, Judge.
The plaintiff below (McKay) brought this suit alleging he had been bitten by a dog owned by Mr. and Mrs. Perry while he was lawfully on their premises. McKay suffered a directed verdict at the close of his case by reason of having failed to prove that the Perrys owned the dog which had bit him. The plaintiff appeals from the final judgment entered upon the directed verdict.
Prior to his canine encounter, McKay had called Mrs. Perry to inquire of the possibility of buying the Perrys’ boat. Mrs. Perry told McKay where the boat could be seen. McKay drove to that address and got out to look at the boat. While there, he was attacked by a brown and white pointer which bit him on the leg.
In the pleadings and at the pre-trial conference, the Perrys’ ownership of the dog was denied. At the trial, McKay called as a witness, Ken Mulder, who was a friend of both McKay and the Perrys. McKay tried to adduce testimony from Mulder concerning a telephone conversation which Mulder was said to have had with Perry subsequent to McKay’s injury. The trial judge sustained an objection to this testimony, but he permitted McKay to make a proffer out of the presence of the jury. The court rejected the proffer and refused to permit the jury to hear Mulder’s testimony.
The sole point on appeal is whether the court erred in refusing to allow Mulder to testify of his telephone conversation with Perry. In this appeal, McKay asserts that Mulder would have testified that in the course of this conversation Perry told him that he owned a brown and white pointer. Such testimony, if admitted, would have probably gotten McKay past a directed verdict since he had already testified that he was bitten by a brown and white pointer while on the Perrys’ premises.
If Perry told Mulder that he owned a brown and white pointer, this would have constituted an admission which would be admissible as an exception to the hearsay rule. City of Miami v. Fletcher, Fla.App. 1964, 167 So. 2d 638. Moreover, an admission may be introduced as substantive evidence of the truth of the matter stated. Seaboard Coast Line Railroad Co. v. Nieuwendaal, Fla.App.1971, 253 So. 2d 451. The only problem is that McKay’s proffer of what Mulder would testify was not clear. The court conducted the bulk of the questioning during the proffer, and McKay’s attorney never did spell out exactly what he was driving at. However, having con sidered the totality of what transpired with respect to this point, we believe that a sufficient showing was made to have entitled McKay to introduce the testimony of Mulder with respect to what Perry had told him on the telephone. Since there was no other testimony in the record concerning the ownership of the dog, this constituted. error which was prejudicial to McKay.
The judgment is hereby reversed, and the case is remanded for a new trial.
HOBSON, Acting C. J., and Mc-NULTY, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Ring Power Corp. v. Condado-Perez, 219 So. 3d 1028 (Fla. 2d DCA 2017)…Of course, the admission must also be relevant—“tending to prove or disprove a material fact.” § 90.401. Statements of a party offered by an opponent regarding causation in negligence actions are generally considered admissions. See McKay v. Perry, 286 So. 2d 262, 263 (Fla. 2d DCA 1973) (stating that party’s statement to neighbor regarding ownership of a dog in a dog-bite case would be admissible as an admission); Otis Elevator Co. v. Youngerman, 636 So. 2d 166, 167 n.1 (Fla. 4th DCA 1994) (noting that plain…
Authorities Cited
- City OF Miami v. Fletcher, 167 So. 2d 638 (Fla. 3d DCA 1964)
- Seaboard Coast Line R.R. Co. & Farrell W. Bassett v. Herman Nieuwendaal and wife, 253 So. 2d 451 (Fla. 2d DCA 1971)