Compania Dominicana De Aviacion v. Knapp

251 So. 2d 18
CourtDistrict Court of Appeal of Florida
DecidedJuly 20, 1971
Docket70-755
StatusPublished
Cited by36 cases

This text of 251 So. 2d 18 (Compania Dominicana De Aviacion v. Knapp) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Compania Dominicana De Aviacion v. Knapp, 251 So. 2d 18 (Fla. Ct. App. 1971).

Opinion

251 So.2d 18 (1971)

COMPANIA DOMINICANA de AVIACION and Underwriters at Lloyds, London, Appellants,
v.
Charles KNAPP, As Father of Clifford Knapp, a Deceased Minor, and As Husband of Ethyle Knapp, Appellees.

No. 70-755.

District Court of Appeal of Florida, Third District.

July 20, 1971.
Rehearing Denied August 20, 1971.

*19 Sam Daniels, McDonald & McDonald, Miami, for appellants.

Spence, Payne & Masington, George C. Vogelsang, Podhurst, Orseck & Parks, Miami, for appellees.

Before SWANN, C.J., and HENDRY, J., and CULLEN, RALPH O., Associate Judge.

PER CURIAM.

This action arose out of an airplane crash which took the lives of two of plaintiff's three sons when the aircraft crashed into the automobile paint and body shop on N.W. 36th Street in Miami where the boys were working at the time. On June 23, 1969 an airplane owned and operated by the defendant Compania Dominicana de Aviacion and insured by the defendant, Underwriters at Lloyds, London, took off from Miami International Airport. Immediately upon take-off, mechanical difficulties, arose and the plane, in a matter of minutes, crashed in the N.W. 36th Street area as the pilot attempted to return to the airport.

Defendants appeal from a final judgment for plaintiff, Charles Knapp, as father of Clifford Knapp, a deceased minor, and as husband of Ethyle Knapp. The final judgment in this action for the wrongful death of one of the deceased sons was in the amount of $1,800,000 rendered on a jury verdict for the plaintiff. § 768.03, Fla. Stat., F.S.A. The defendants have presented four points for reversal: failure to grant severance, failure to grant a mistrial for intentional injection of evidence of insurance payment, failure to grant mistrial for misconduct of counsel in claiming that the pilot had flunked U.S. competency tests and failure to grant a new trial on the ground that the verdict was excessive. As to all points we express the view that the appellant has failed to demonstrate reversible error.

Defendants first claim reversible error when the trial court denied their motions to sever Lloyds, the insurance carrier, from Dominicana as a party. Lloyds was joined as a party under Shingleton v. Bussey, Fla. 1969, 223 So.2d 713. After respective denials of defendant's motions to sever and for new trial the Supreme Court decided Beta Eta House Corp., Inc. of Tallahassee v. Gregory, Fla. 1970, 237 So.2d 163, in which it held that a trial court may order separate trials in cases in which an insurance carrier has been joined as a party defendant. Defendants claim the trial judge was not aware he could sever because Beta Eta which authorized such severances had not been released at the time their respective motions were denied. This argument overlooks the fact that a severance in civil cases has been held to be a matter of discretion in the trial court for many years. Vander Car v. Pitts, Fla. App. 1964, 166 So.2d 837; Bowen v. Manuel, Fla.App. 1962, 144 So.2d 341; and 32 Fla.Jur., Trial § 18.

We have reviewed the record and the briefs in light of this contention and find that the trial court did not abuse its discretion or commit error in the denial of *20 the motions for severance or the motions for new trial. See Beta Eta, supra; Hartford Accident & Indemnity Company v. Myers, Fla.App. 1971, 247 So.2d 83, 2 D.C.A.; Stecher v. Pomeroy, Fla.App. 1971, 244 So.2d 488; Durrett v. Davidson, Fla. App. 1970, 239 So.2d 46; and Rule 1.270(b), R.C.P., 30 F.S.A.

Defendants next contend that the trial court erred in refusing to grant a mistrial or motion for a new trial because of alleged prejudicial testimony. The testimony elicited from the disinterested witness during the plaintiff's case in chief was that the defendant insurance company had paid for damages to the witness' cars. The defendants argue that the rule pronounced in City of Coral Gables v. Jordan, Fla.App. 1966, 186 So.2d 60, affd, Fla. 1966, 191 So.2d 38 and Dade County v. Clarson, Fla. App. 1970, 240 So.2d 828 was violated. See also § 768.041, Fla. Stat., F.S.A. (formerly § 54.28, Fla. Stat. 1965). We hold that the trial court did not err in failing to grant a mistrial or a new trial.

During the trial in chief the manager of a used car lot was called by plaintiff. He was asked by plaintiff's attorney to describe the smoke from the Dominicana aircraft just before it crashed. The following occurred:

"A. Well, it was white. It was a whitish blue color and just a lot of it. In other words, when it come over it sprayed a lot of oil on our cars. The reason we know this, we had to wash all of the cars on our lot that was on the north end of the lot itself and the south end of the lot did not have any. So it appeared that something blowing throwed oil all over everything as it came across our lot there. And all this oil just went all over our cars and, in fact, the insurance company paid for cleaning all our cars."

The following testimony was then elicited:

"Q. That is Lloyd's of London?
A. Yes, sir.
ATTORNEY (D): I object, Your Honor.
THE COURT: It has been answered. I sustain the objection.
ATTORNEY (D): I move for a mistrial. I think that is an improper and prejudicial comment for counsel to make.
THE COURT: Denied.
ATTORNEY (P): I do not know whether he is talking about his own insurance company or Lloyd's.
ATTORNEY (D): The implication was that he was trying to shove it down our throat.
THE COURT: I have sustained the objection. The motion is denied. Disregard it."

After the noon recess, plaintiff's counsel requested the trial court to strike and instruct the jury to disregard the claims payment evidence; defense counsel objected to any further treatment of the matter on the ground it would only serve to emphasize it in the jurors' minds; and, accordingly, the trial judge said nothing further about the incident.

The testimony elicited contained two elements which have been looked upon as wholly irrelevant to the issues of a negligence action and as potentially prejudicial to a party. These elements are insurance and settlement. We have already determined that the trial court did not err in refusing to sever the insurance company, and therefore conclude that the mention of insurance did not constitute reversible error.

Even if insurance is mentioned, frequently curative instructions are the proper means of correcting the error. Only where the impropriety is so egregious that such instructions cannot dissipate the prejudice, should a mistrial be granted; e.g., Dade County v. Clarson, supra. The *21 principle is well known that the parties are not entitled to a perfect trial, but only one free from reversible error. Likewise, the rule has evolved that a motion for mistrial is directed to the sound judicial discretion of the trial judge who has observed the action and its effect upon the jurors. See generally, Dade County v. Clarson, supra. Therefore, not every breath of insurance automatically results in a mistrial. See generally, Douglass v. Galvin, Fla. App. 1961, 130 So.2d 282, 284-285. Because of these considerations, and the possibility of invited error or waiver (these two arguments are not raised herein), parties who object to the giving of curative instructions are sometimes not heard to complain; e.g., Douglass v. Galvin, supra.

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251 So. 2d 18, Counsel Stack Legal Research, https://law.counselstack.com/opinion/compania-dominicana-de-aviacion-v-knapp-fladistctapp-1971.