SEABOARD COAST LINE RAILROAD COMPANY, A RAILROAD CORPORATION, APPELLANT,
v.
WIESENFELD WAREHOUSE COMPANY, A DIVISION OF UNITED STATES TRUCKING CORPORATION, A NEW YORK CORPORATION, AND INSURANCE COMPANY OF NORTH AMERICA, A CORPORATION, APPELLEES
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The court held that the trial judge's remark to counsel in the jury's presence constituted reversible error, but the interpretation of the contract clause was correct.
[1] A trial judge's remarks or actions that could be construed by the jury as critical of an attorney or their case may constitute reversible error.
[2] Remarks by a trial judge that impute unethical conduct to a lawyer can prejudice the client's cause by lowering the lawyer's esteem before the jury.
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Join FLexlaw to unlock all legal intelligenceAn employee was injured on a warehouse property and the employer paid a judgment. The employer then sued the warehouse, claiming indemnification. The …
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PER CURIAM.
Charles E. Miller, an employee of appellant, was injured when he stepped in a hole on the property of Wiesenfeld Warehouse Company, one of the appellees herein. Mr. Miller brought suit against appellant and received a $250,000 judgment, which appellant has paid. Appellant subsequently initiated this action, claiming that Wiesenfeld and its insurer, Insurance Company of North America, were liable to it for all or part of the $250,000 which it was required to pay. From the judgment entered upon the jury verdict in favor of appellees Wiesenfeld and Insurance Company of North America, appellant has perfected this appeal.
Appellant asserts that the trial judge committed reversible error when he impliedly accused appellant’s counsel of wrongdoing in the presence of the jury. The incident occurred when appellant’s counsel moved the podium approximately two feet closer to the jury box during voir dire examination. A reading of the record reveals that counsel had been having difficulty hearing and understanding the responses of the prospective jurors to his and opposing counsel’s questions. Upon noticing the movement of the podium, the trial judge initiated the following exchange :
“The Court: You’ll have to come right back to the stand. You may could, but we can’t. I will have the jury—
“Mr. Gay: All right.
“The Court: If you are going to talk confidentially, then—
“Mr. Gay: I am not trying to do that, your honor. I am getting deaf.
“The Court: Get you a hearing aid.” In his conduct of the trial, the presiding judge must make every effort to remain fair and impartial. (Skelton v. Beall, Fla.App.3rd 1961, 133 So. 2d 477) Inasmuch as the trial judge has, or at least should have, the absolute confidence and respect of the jury, he should be extremely careful in his remarks and actions to insure that nothing he says or does might be construed by the jury as being either critical of an attorney or of the attorney’s case. A remark which appears to impute unethical conduct to a lawyer lowers the esteem of the lawyer before the jury and consequently prejudices the client’s cause. (Giglio v. Valdez, Fla.App.2nd 1959, 114 So. 2d 305) In most cases, when the trial judge believes that an attorney has acted improperly, any remarks to be made or any disciplinary matters or criticism to be taken during the conduct of the trial should be done privately at the side bar out of the hearing of the jury or else the jury should be excused. Sub judice, the trial judge implied that the appellant’s counsel was acting improperly, attempting to get “confidential” with the jury. This action by the trial court in the presence of the jury, although perhaps intended as jest, nevertheless constitutes reversible error, requiring a new trial.
Appellant has also contended that the trial court erred in determining that a certain section of the contract between appellant and appellee Wiesenfeld was not applicable to the cause at hand. The section in question, Section 7(b) of the contract, reads as follows:
“Notwithstanding any other provision herein contained, the Industry shall and does hereby expressly assume and agree to indemnify and hold harmless the Railroad from and against all loss and damage, costs, expenses, including attorneys’ fees, claims, suits and judgments whatsoever arising from or growing out of any injuries, loss or damage caused by or contributed to by the failure of the Industry, its employees, agents or licensees, (i) to comply with the provisions of this Article 7, or (ii) to keep the right of way of said sidetrack free and clear of all commodities, rubbish, trash or other objects which may be hazardous or danagerous to those engaged in the operation of the Railroad.”
Specifically, appellant urges that the trial court was in error when he held that a hole would not constitute commodities, rubbish, trash or other objects. We are of the view that the lower court was correct in finding that a “hole” was not an "object”, at least within the context of the contract sub judice. We note initially that words and phrases used in contracts should normally be given their natural meaning. (7 Fla.Jur., “Contracts”, § 88) In its normal meaning, the word “object” does not encompass the word “hole” within its definition. Further, the word “object” needs to be interpreted in light of the phrase within which it is used. Here, the pertinent phrase is “commodities, rubbish, trash or other objects.” It is difficult for us to consider a “hole” as being another “object” in the same category as “commodities, rubbish, or trash”. We, therefore, reject appellant’s argument under this point.
Affirmed in part and reversed in part, and remanded for a new trial.
It is so ordered.
BOYER, C. J., MILLS, J., and MELVIN, WOODROW M., Associate Judge, concur.
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Medina v. Variety Child's. Hosp., 438 So. 2d 138 (Fla. 3d DCA 1983)…tion should be taken only at a side bar conference out of the hearing of the jury, or upon excusing the jury. Florida Motor Lines Corporation v. Barry, 158 Fla. 123, 27 So. 2d 753 (1946); Seaboard Coast Line Railroad Co. v. Wiesenfeld Warehouse Co., 316 So. 2d 567 (Fla. 1st DCA 1975), cert. denied, 328 So. 2d 846 (Fla.1976); Skelton v. Beall, 133 So. 2d 477 (Fla. 3d DCA 1961). Second, medical treatises cannot be used to bolster the testimony of a physician on direct examination. See Tallahassee Memorial Reg…
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Whitenight v. Int'l Patrol & Detective Agency, Inc., 483 So. 2d 473 (Fla. 3d DCA 1986)…ttempt to cure them, prejudiced the plaintiffs’ case and warrants reversal. We agree. The status of a judge in the eyes of jurors results in his remarks having great influence upon them. See Seaboard Coast Line Railroad v. Wiesenfeld Warehouse Co., 316 So. 2d 567 (Fla. 1st DCA 1975). As a result, inappropriate, confusing or misleading comments on the evidence or a party’s theory of the case can often lead a jury to erroneous conclusions. Gendzier v. Bielecki, 97 So. 2d 604 (Fla.1957). There can be no questio…
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Rayam v. Greyhound Lines, Inc., 347 So. 2d 842 (Fla. 1st DCA 1977)…e been delivered out of the presence of the jury, the language employed by the judge was mild and not couched in such terms as to have prejudiced either party, thus distinguishing Seaboard Coast Line Railroad Company v. Wiesenfeld Warehouse Company, 316 So. 2d 567 (Fla. 1st DCA 1975) and Giglio v. Valdez, 114 So. 2d 305 (Fla. 2nd DCA 1959). Accordingly, appellant having failed to demonstrate error, the judgment here appealed is AFFIRMED. BOYER, Acting C. J., and MILLS and ERVIN, JJ., concur.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Giglio v. Valdez, 114 So. 2d 305 (Fla. 2d DCA 1959)
- Vinson Skelton & Alterman Transp. Lines, Inc. v. Beall, 133 So. 2d 477 (Fla. 3d DCA 1961)