WILLIAMSON TRUCK LINES, INC., A FOREIGN CORPORATION DOING BUSINESS IN FLORIDA, APPELLANT,
v.
ROBERT M. KELLAR AND CANDICE LYNN KELLAR, HIS WIFE, APPELLEES
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Williamson Truck Lines appeals a judgment arising from a motor vehicle collision, challenging the trial court's decision to permit rebuttal testimony from a witness whose name did not appear on the pretrial witness list. The court affirmed, holding that the trial judge did not abuse discretion in allowing the testimony where the defendant suffered no prejudicial error.
No. The trial court did not abuse its discretion in allowing the rebuttal witness testimony, and the defendant failed to demonstrate prejudicial error. Permitting or prohibiting testimony of a rebuttal witness not listed before trial is within the trial judge's broad discretion and will not be disturbed absent a showing of prejudicial error.
[1] Permitting or prohibiting the testimony of a rebuttal witness whose name was not supplied before trial is within the broad discretion of the trial judge.
[2] The trial court's decision to permit or prohibit a rebuttal witness not on the pretrial list will not be disturbed on appeal absent a showing of prejudicial error.
Previewing 2 of 4 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“It is well-settled that permitting or prohibiting the testimony of a rebuttal witness, whose name has not been supplied before trial to opposing counsel, is a matter within the broad discretion of the trial judge, and will not be disturbed on appeal absent a showing of prejudicial error.”
Establishes the legal standard governing admission of unlisted rebuttal witnesses—within trial judge's discretion and only disturbed for prejudicial error.
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceA collision occurred between the Kellars' automobile and a tractor-trailer operated by Charles Mitchell. The jury found the defendant negligent and aw…
The full statement of facts, procedural history, and disposition for this case are member content.
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HENDRY, Judge.
The sole point on appeal in this case is whether or not the trial judge committed reversible error by permitting the plaintiffs to call a rebuttal witness whose name did not appear on a pretrial witness list.
This litigation arose out of a collision between the plaintiffs’ automobile and a tractor-trailer belonging to the defendant and operated by one, Charles Mitchell.
The jury returned a special verdict finding the defendant negligent and determining plaintiff Robert Kellar’s damages to be $60,000 and Candice Lynn Kellar’s, $0. The jury further found that Robert Kellar was 25 percent negligent, and accordingly the trial court entered final judgment in the amount of $45,000.
Each side advanced their own theory of how the accident happened. Kellar contended that he was returning from Naples eastbound on Tamiami Trail near Krome Avenue. According to his version, the tractor-trailer, which was situated in the far right hand lane, made a sudden left hand turn, thus blocking both eastbound lanes of traffic and making the collision unavoidable on plaintiff’s part.
Mitchell, however, testified that he was unfamiliar with the area, that he was told he could make a U-turn at the point where the accident occurred by a nearby service station operator, and that he was in the far left hand lane when he attempted a U-turn at the turnaround. While attempting to complete this maneuver, according to Mitchell, the accident took place.
Thereafter, plaintiff called ‘as a rebuttal witness another truck driver, Thalmage Louelen Brown. The defendant objected on the grounds that the witness’ name did not appear on the witness list.
Prior to permitting Brown’s testimony, the court required plaintiffs’ counsel to proffer the purpose for calling the witness. Counsel stated that he had requested Brown together with his investigator to conduct a test at the accident location to determine whether or not it was possible to make a U-turn from the far left-hand lane.
At that point, the court permitted Brown to testify, and the record reflects that defendant’s counsel capably cross-examined the witness, managing to get Brown to concede that the truck in which he conducted the experiments was different from the one involved in the accident and also that different trucks have different turning radiuses.
It is well-settled that permitting or prohibiting the testimony of a rebuttal witness, whose name has not been supplied before trial to opposing counsel, is a matter within the broad discretion of the trial judge, and will not be disturbed on appeal absent a showing of prejudicial error. McDonald Air Conditioning, Inc. v. John Brown, Inc., Fla.App.1973, 285 So. 2d 697; Green v. Shoop, Fla.App.1970, 240 So. 2d 85; County of Brevard v. Interstate Engineering Co., Fla.App.1969, 224 So. 2d 786; Driscoll v. Morris, Fla.App.1959, 114 So. 2d 314.
The defendant has argued before the trial court and this court that Brown’s testimony was irrelevant because it was conceded that the U-turn was never completed, and therefore whether or not it was possible to make a U-turn was not important.
We think there was a clear factual conflict in this case which the jury resolved in favor of the plaintiffs. The appellant has not demonstrated a clear abuse of discretion by the court which constitutes prejudicial error. Therefore, for the reasons stated, the judgment appealed is affirmed.
Affirmed.
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Binger v. King Pest Control, 401 So. 2d 1310 (Fla. 1981)…nt-A-Car, Inc. v. Edwards, 190 So. 2d 362 (Fla. 3d DCA 1966). At least one case appears to conclude that, subject to the trial judge’s discretion, a “rebuttal” witness need not be disclosed prior to trial. See Williamson Truck Lines, Inc. v. Kellar, 301 So. 2d 818 (Fla. 3d DCA 1974). Yet another case suggests that a witness need not be disclosed if he will respond to any new or surprise testimony brought out at trial. See Atlas v. Siso, 188 So. 2d 344 (Fla. 3d DCA 1966). The district court below identified e…
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King Pest Control v. Binger, 379 So. 2d 660 (Fla. 4th DCA 1980)…e trial in which they might appear. As we see it, the key to the proper administration of such a rule is the trial judge, clothed as he is, with a broad discretion in resolving questions arising during a trial. Williamson Truck Lines Inc. v. Kellar, 301 So. 2d 818 (Fla. 3rd DCA 1974); Green v. Shoop, 240 So. 2d 85 (Fla. 1st DCA 1970); County of Brevard v. Interstate Engineering Company, 224 So. 2d 786 (Fla. 4th DCA 1969); Atlas v. Siso, 188 So. 2d 344 (Fla. 3rd DCA 1966). Should either party offer an unlisted…
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Modelo Cafeteria, Inc. v. Evelia Joffre, 405 So. 2d 489 (Fla. 3d DCA 1981)…JORGENSON, Judge (concurring specially)- I cannot agree that the trial Judge abused his discretion by enforcing the terms of a pre-trial order with strict compliance provisions. Williamson Truck Lines, Inc. v. Kellar, 301 So. 2d 818 (Fla.3d DCA 1974); Duran v. Neff, 366 So. 2d 169 (Fla.3d DCA 1979). I do, however, agree that the appellant must carry the day on the other issue raised by this appeal. At the charge conference, appellant’s counsel stated that only standard charge…
Authorities Cited
- Driscoll v. Morris, 114 So. 2d 314 (Fla. 3d DCA 1959)
- McDONALD AIR Conditioning, Inc. v. John Brown, Inc., 285 So. 2d 697 (Fla. 4th DCA 1973)
- Cnty. OF Brevard v. Interstate Eng'g Co., Inc., 224 So. 2d 786 (Fla. 4th DCA 1969)
- Eastling v. State, 240 So. 2d 85 (Fla. 3d DCA 1970)