WILLIAM O. STANDLEY, INDIVIDUALLY, ET AL., APPELLANTS,
v.
J. EDWIN WHITE AND HARTFORD ACCIDENT AND INDEMNITY COMPANY, APPELLEES
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This case involves a wrongful death action against an employer where appellants sought to prove the employee was acting within the scope of employment through statements made to police. The court upheld the trial court's exclusion of evidence under Florida's traffic accident investigation privilege and confirmed that agency cannot be proven by an agent's unilateral declaration without the principal.
The trial court properly excluded trooper Raker's testimony under the statutory traffic accident investigation privilege while properly admitting officer Bowden's testimony. Additionally, agency cannot be proved by a declaration of the putative agent in the absence of the principal.
[1] A statement made to a traffic accident investigator for the purpose of preparing a traffic accident report is privileged and inadmissible.
[2] A statement made to a traffic homicide investigator is not privileged under statutes protecting statements made to traffic accident investigators.
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Join FLexlaw to unlock all legal intelligence“Even if the statute did not unambiguously require the ruling given, the statement attributed to Johnson by trooper Raker could not have been admitted as substantive evidence. Agency may not be proved by a declaration of the putative agent in the absence of the principal.”
Establishes the dual basis for excluding the statement: statutory privilege and the hearsay/agency rule principle
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Join FLexlaw to unlock all legal intelligenceJoseph Johnson drove his truck into a collision with the decedent's vehicle, killing her. Johnson made conflicting statements to two officers on the s…
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SMITH, Judge.
Appellants are the surviving husband and children of a woman whose death was caused by the negligence of Joseph Johnson. Johnson drove his truck down the wrong side of a divided highway into a collision with the decedent’s automobile. Appellants’ action against appellee White asserted that Johnson was White’s employee engaged in the course of his employment at the time of the collision. A jury verdict resulted in a judgment for White.
Appellants’ principal contention is that the trial court erred in excluding evidence that immediately following the collision Johnson told trooper Raker, inquiring for purposes of preparing a traffic accident report, that he, Johnson, was on his way to work at White’s nursery at the time of the collision. The testimony was excluded as a communication privileged by § 316.066(4), F.S.1973. Appellants complain that it was inequitable to exclude trooper Raker’s testimony after admitting the testimony of officer Bowden that Johnson told him that he, Johnson, was going fishing at the time of the wreck. Trooper Bowden conducted the traffic homicide investigation but took no part in the traffic accident investigation. Johnson, who the record shows remembered few pertinent facts and was confused about those, gave these conflicting statements to the two officers on the same day, first to officer Bowden and, ten minutes later, to trooper Raker. The court called Johnson as a witness during the presentation of appellants’ case and permitted both sides to cross-examine him. On direct examination by appellants’ counsel, Johnson testified that he was on his way to work at White’s nursery at the time of the collision. Counsel for White, on cross-examination, was permitted to lay the predicate for impeaching Johnson by inquiring whether Johnson had told officer Bowden that he was going fishing. When Johnson denied that, officer Bowden was permitted over objection to so testify during White’s case. That was proper. State v. Coffey, 212 So. 2d 632 (Fla.1968); State v. Mitchell, 245 So. 2d 618 (Fla.1971).
Notwithstanding the appeal of appellants’ argument on the seeming inequity of the result, we hold that the trial court properly admitted the homicide investigator’s testimony and excluded that of the traffic accident investigator. Sec. 316.-066(4), F.S.1973. Contrast Wise v. Western Union Tele. Co., 177 So. 2d 765 (Fla. App. 1st, 1965). Even if the statute did not unambiguously require the ruling given, the statement attributed to Johnson by trooper Raker could not have been admitted as substantive evidence. Agency may not be proved by a declaration of the putative agent in the absence of the principal. Martin v. Johnson, 54 Fla. 487, 44 So. 949 (1907); Aerovias Panama, S.A. v. Air Carrier Engine Serv., Inc., 195 So. 2d 230 (Fla.App.3d, 1967).
Affirmed.
RAWLS, Acting C. J., and MILLS, J., concur.
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White v. Kiser, 368 So. 2d 952 (Fla. 1st DCA 1979)…. 2d 765, 767 (Fla. 1st DCA 1965). The sections according the privilege have been given a liberal interpretation in favor of the privilege of confidence. See Smith v. Frisch’s Big Boy, Inc., 208 So. 2d 310, 313 (Fla. 2d DCA 1968); Standley v. White, 326 So. 2d 68 (Fla. 1st DCA 1976) which held certain statements to the reporting officer privileged although the result of according the privilege seemed to reach an inequitable result; Ippolito v. Brener, 89 So. 2d 650 (Fla.1956) which held there was no waiver o…
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Porter v. Pappas, 368 So. 2d 909 (Fla. 3d DCA 1979)…omicide and not for a Section 316.066(4) traffic report, the statement was afforded no protection under the statute and was properly admitted into evidence. Appellees rely heavily upon State v. Mitchell, 245 So. 2d 618 (Fla.1971); Standley v. White, 326 So. 2d 68 (Fla. 1st DCA 1976); State v. Fernandez, 303 So. 2d 58 (Fla. 4th DCA 1974). We think these cases are distinguishable from the instant case and are not controlling. We do think, however, the controlling cases are Nash Miami Motors, Inc. v. Ellsworth…
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Westship World Yachts, LLC v. Reel Deal Yachts, Inc., 970 So. 2d 354 (Fla. 3d DCA 2007)…So. 2d 827 (Fla. 3d DCA 1975). Reversed and remanded. SCHWARTZ and FLETCHER, Senior Judges, concur. . For this purpose, we assume arguendo that the items of evidence objected to by appellant were properly admitted. But see Standley v. White, 326 So. 2d 68, 69 (Fla. 1st DCA 1976)("Agency may not be proved by a declaration of the putative agent in the absence of the principal.”); Aerovias Panama, S.A. v. Air Carrier Engine Serv., Inc., 195 So. 2d 230, 231 (Fla. 3d DCA 1967)(same); but cf. Blunt v. Trip…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Mitchell, 245 So. 2d 618 (Fla. 1971)
- State v. Coffey, 212 So. 2d 632 (Fla. 1968)
- Wise v. The W. Union Tel. Co., 177 So. 2d 765 (Fla. 1st DCA 1965)
- Martin v. Johnson, 54 Fla. 487 (Fla. 1907)
- Aerovias Panama v. AIR Carrier Engine Serv., Inc., 195 So. 2d 230 (Fla. 3d DCA 1967)