ROSE'S STORES, INCORPORATED AND EDWARD S. ROSE, APPELLANTS,
v.
PEARL MASON, APPELLEE

Fla. 4th DCA | 1976-11-12
No. 76-1059
MAGER, C. J., and CROSS, J., concur.
338 So. 2d 1323 Florida District Court of Appeal, Fourth District (1976) Negative Treatment
Cited by 10 cases

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.

Synopsis

Rose's Stores and Edward Rose appealed a trial court's grant of a new trial motion in a false imprisonment case where the jury had found for the defendants. The appellate court reversed, holding that the trial court abused its discretion by granting a new trial based on a jury instruction issue that was never objected to at trial.


Holding

The trial court abused its discretion in granting the new trial motion. The jury instruction on false imprisonment did not omit any essential element of the tort, and the jury was properly informed that alleged restraint had to be against the plaintiff's will. Because the defendant failed to object to the instruction at trial as required by rule, the alleged omission could not form the basis for a new trial.


Headnotes

[1] A party must object to the trial court's failure to give a requested jury instruction at the time of the charge conference to preserve the issue for appeal.

[2] A party must object to the trial court's giving of a jury instruction at the time of the charge conference to preserve the issue for appeal.

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Key Quotes

“No party may assign as error the giving of any charge unless he objects thereto at such time or the failure to give any charge unless he requested the same.”

Establishes the procedural requirement that parties must timely object to jury instructions to preserve the issue for appeal.

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Facts & Procedural History

Pearl Mason sued Rose's Stores and Edward Rose for false imprisonment. The jury returned a verdict in favor of the defendants. After entry of final ju…

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Opinion of the Court
ALDERMAN, Judge.

ALDERMAN, Judge.

This is an appeal from an order of the Circuit Court of Seminole County granting appellee’s motion for new trial. Appellee, the plaintiff below, sued appellants for false imprisonment. The jury’s verdict was for the appellants. After entry of final judgment, the trial court granted appellee’s motion for new trial, reciting that it had “erred in failing to instruct the jury directly that a protest on the part of the plaintiff was not an element of the cause of action for false imprisonment.”

The transcript shows that at the charge conference appellee’s requested instruction on false imprisonment was accepted and later read to the jury by the judge. There was of course no objection by appellee to the use of her own instruction. After the jury retired it later returned to the courtroom with a request for “a reading on the law for stores to be able to detain people, and probable cause.” The judge was asked a somewhat ambiguous question by a member of the jury: “Pertaining to the law and false imprisonment or detention, does that only pertain when the individual makes it known that they do not wish to be detained? In other words, when they are being detained against their own free will?” In response the judge re-read the instruction on false imprisonment. The same jur-or (Mr. Barrett) who had asked the previous question then asked, “In order to have false imprisonment or detention to take place, the person has got to be detained in a room or whatever against their will?” Another juror said she thought Mr. Barrett was trying to ask if there had to be an oral protest by the allegedly imprisoned party. Mr. Barrett then said that the jury could probably make up its mind if it heard the instruction on false imprisonment again, whereupon the judge read that part of the charge for the third time. There was no objection by appellee to the court’s failure to state whether an oral protest to detention was necessary. Later the appellee made that omission the ground for her motion for a new trial.

Pla.R.Civ.P. 1.470(b) provides in part: “No party may assign as error the giving of any charge unless he objects thereto at such time or the failure to give any charge unless he requested the same.” As a general rule, in order to preserve an alleged ground for a new trial, an objection must be made at the time the event occurs. Miller v. Pace, 71 Fla. 274, 71 So. 276 (1916); Omer Corp. v. Duke, 211 So. 2d 48 (Fla. 3d DCA 1968). This is true in reference to a motion for new trial based upon the ground that the trial court failed to properly instruct the jury. Berger v. Nathan, 66 So. 2d 278 (Fla.1953); Gordon v. St. Mary’s Hospital, Inc., 305 So. 2d 234 (Fla. 4th DCA 1974).

We have reviewed the instruction given in this case and find that it does not omit or misstate any essential element of the tort of false imprisonment. Counsel for both parties, as well as the jury, appeared to be satisfied after the instruction on false imprisonment had been read for the third time. The jury was fully informed that the alleged restraint of the appellee had to be against her will in order to constitute false imprisonment. There was no insinuation that she had to make an oral protest before she could claim to be falsely imprisoned against her will. The trial judge could have answered the juror’s question directly, but in the absence of any objection on the part of the appellee, we cannot say that his failure to answer was fundamental error as would justify the granting of a new trial. Cf. Christian v. State, 272 So. 2d 852 (Fla. 4th DCA 1973).

We conclude that the trial court abused its discretion in granting appellee’s motion for new trial. REVERSED and REMANDED with instruction that final judgment be entered in favor of appellants.

MAGER, C. J., and CROSS, J., concur.


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Citator

Cited By

  • Sears Roebuck & Co. v. Arlee Jackson and Mugge Rivers, 433 So. 2d 1319 (Fla. 3d DCA 1983)
    …2d 1048 (Fla. 3d DCA 1983) (order granting new trial based on assertedly improper jury instruction and argument reversed where no objection made at trial and where instruction and argument proper in any event); Rose’s Stores, Incorporated v. Mason, 338 So. 2d 1323 (Fla. 4th DCA 1976) (order granting new trial based on assertedly improper jury instruction reversed where no objection to instruction made at trial); Gordon v. St. Mary’s Hospital, Inc., 305 So. 2d 234 (Fla. 4th DCA 1974) (same). See also Berger v.…
  • Abrams v. Paul, 453 So. 2d 826 (Fla. 1st DCA 1984)
    …no such error is preserved absent an objection to the verdict form. See Whitman v. Castlewood [*830] International Corp., 383 So. 2d 618 (Fla. 1980); Middelveen v. Sibson Realty Inc., 417 So. 2d 275 (Fla. 5th DCA 1982); Rose’s Stores Inc. v. Mason, 338 So. 2d 1323 (Fla. 4th DCA 1976); High, Clarke & Feneis Inc. v. Public Service Mutual Insurance Co., 238 So. 2d 169 (Fla. 3d DCA 1970); Fla.R.Civ.P. 1.470(b). This issue would also, of course, be mooted if new trial is granted on other grounds, supra. Affirmed…
  • Harris v. The Lewis State Bank, 436 So. 2d 338 (Fla. 1st DCA 1983)
    …f need not show that force was used in the detention, Lewis v. Atlantic Discount Company, 99 So. 2d 241, 242 (Fla. 1st DCA 1957), nor that she made an oral protest to demonstrate that the detention was against her will. Rose’s Stores, Inc. v. Mason, 338 So. 2d 1323 (Fla. 4th DCA 1976). See also 24 Fla.Jur.2d False Imprisonment § 2 (1981). A plaintiff alleging false imprisonment must show, however, that the restraint was “unreasonable and unwarranted under the circumstances.” Kanner v. First National Bank oí So…

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