Del Monte Banana Co. v. Chacon

466 So. 2d 1167, 10 Fla. L. Weekly 882
CourtDistrict Court of Appeal of Florida
DecidedApril 2, 1985
Docket83-2429
StatusPublished
Cited by20 cases

This text of 466 So. 2d 1167 (Del Monte Banana Co. v. Chacon) 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
Del Monte Banana Co. v. Chacon, 466 So. 2d 1167, 10 Fla. L. Weekly 882 (Fla. Ct. App. 1985).

Opinion

466 So.2d 1167 (1985)

DEL MONTE BANANA Company and Federal Transport, Inc., Appellants,
v.
Jonathan Chacon, Appellee.

No. 83-2429.

District Court of Appeal of Florida, Third District.

April 2, 1985.

*1169 Fowler, White, Burnett, Hurley, Banick & Strickroot and William C. Norwood and Brett A. Rivkind, Miami, for appellants.

Horton, Perse & Ginsberg and Arnold Ginsberg; Huggett & Martucci, Miami, for appellee.

Before SCHWARTZ, C.J., and NESBITT and DANIEL S. PEARSON, JJ.

NESBITT, Judge.

The defendants appeal a final judgment entered against them on a jury verdict for compensatory damages and maintenance and cure. We reverse.

The plaintiff brought this action against the defendants for physical and mental injuries he received from an accident which allegedly occurred while he was working on the defendants' ship. At trial, the plaintiff presented evidence and testimony which indicated that he was injured on the ship when a mate kicked a snagged line which recoiled and struck the plaintiff in the face. The plaintiff also presented expert *1170 testimony to establish the nature and extent of the injuries sustained, to wit: brain damage, blindness in one eye, memory loss, loss of I.Q. points, partial loss of hearing and psychiatric overlay manifesting impotence, childlike behavior, violent outbursts and personality change.

The defendants contested the existence of both the accident and the injuries. The defense presented evidence and testimony which indicated that the alleged accident on board the ship never, in fact, occurred. Expert testimony was also presented to establish that the plaintiff was lying about or exaggerating his alleged injuries.

At the conclusion of the trial, the jury returned a verdict for the plaintiff of $2 million in compensatory damages and $100,000 for maintenance and cure. Judgment was entered on the verdict. Following the denial of post-trial motions, this appeal ensued.

The defendants admit that there was conflicting and, thus, sufficient evidence to support the jury verdict finding them liable. They contend, however, that a number of improprieties on the part of the plaintiff's counsel during the trial deprived them of a fair and impartial jury. We will discuss the factual circumstances surrounding these alleged improprieties in the order they were presented on appeal.

The Rule Violation

At the outset of the trial, the rule was invoked requiring the sequestration of the witnesses.[1] The purpose of invoking the rule is to avoid the coloring of a witness's testimony by that which he has heard from other witnesses who have preceded him on the stand. Randolph v. State, 463 So.2d 186 (Fla. 1984) (rehearing denied Feb. 26, 1985); Spencer v. State, 133 So.2d 729 (Fla. 1961); cert. denied, 369 U.S. 880, 82 S.Ct. 1155, 8 L.Ed.2d 283 (1962), cert. denied, 372 U.S. 904, 83 S.Ct. 742, 9 L.Ed.2d 730 (1963). Accord Odom v. State, 403 So.2d 936 (Fla. 1981), cert. denied, 456 U.S. 925, 102 S.Ct. 1970, 72 L.Ed.2d 440 (1982); Dardashti v. Singer, 407 So.2d 1098 (Fla. 4th DCA 1982); Ali v. State, 352 So.2d 546 (Fla. 3d DCA 1977). Captain Ramirez, the captain of the ship on which the plaintiff was allegedly injured, was one of the defendants' key witnesses. He testified for the defense that the alleged accident never occurred. At apparently more than one point during the trial, a woman who was sitting in the courtroom as a spectator left the courtroom, sat down next to Captain Ramirez and they conversed.

This possible violation of the court's rule, observed by plaintiff's counsel, was not brought immediately to the attention of the trial judge. Instead, plaintiff's counsel, assuming a violation of the rule had occurred, attempted to impeach the credibility of Captain Ramirez on cross-examination in front of the jury by insinuating that the captain had violated the rule:

Q. Who is this woman?
A. She is a friend of mine.
Q. She is the one that has been coming into the courtroom and going out and telling you what's going on.
... .
Q. She is the one that's been coming into the courtroom and observing the other testimony and then coming out and sitting by you and describing all the little things that's going on.
A. No sir.

This was obviously an attempt by plaintiff's counsel to impress on the jury that the defendants' key witness was violating the court's rule and had probably altered his testimony in accordance with what he *1171 had learned of the other witnesses' testimony. Defense counsel's timely objection to these insinuations was overruled.

Although a party is given wide latitude in attacking the credibility of the opposing party's witnesses, we find that the cross-examination concerning the alleged rule violation in the present case was improper without a preliminary determination by the trial judge that the rule had in fact been violated. The circumstances of the present case certainly do not present an indisputable violation of the rule. Captain Ramirez's woman friend was not a witness in the case and had every right to be present in the courtroom during the trial. The mere fact that she left the courtroom on a number of occasions and was seen conversing with the captain does not necessarily indicate they were speaking of the trial or that the rule was violated.

To permit an attorney to proceed as plaintiff's counsel did in the present case is to allow the attorney to usurp the function of the trial court in two respects. First, the attorney is making the determination that the court's rule has been violated. Second, the attorney is deciding the appropriate remedy for the assumed violation.

The devastating impact that insinuations of this nature can have on the jury's perception of the credibility of a witness requires that the trial judge be given the opportunity to first determine if a violation of the rule has, in fact, occurred. When a party's counsel suspects a witness has violated the rule, he should bring this to the immediate attention of the trial judge and opposing counsel. The judge should then make a determination, outside the presence of the jury, of whether, in fact, its rule has been violated. Depending upon the circumstances of the alleged violation, this can be done at sidebar, or if the trial judge finds it necessary, the jury can be removed and a short informal hearing on the matter can be held.[2]See, e.g., Atkinson v. State, 317 So.2d 807 (Fla. 4th DCA 1975), cert. denied, 330 So.2d 21 (Fla. 1976).

If the judge is satisfied that no violation has occurred, the trial should proceed with no further mention of the matter. If, on the other hand, the trial judge finds the rule has been violated, it is within his sound judicial discretion to determine how to remedy the violation. Odom, 403 So.2d at 941; Rollins v. State, 256 So.2d 541 (Fla. 4th DCA 1972). See also Romano v. Palazzo, 83 Fla. 243, 91 So. 115 (1922). The remedy can range from not permitting the witness to testify at all to allowing cross-examination on the matter as bearing on the witness's credibility. But see Steinhorst v. State, 412 So.2d 332, 336-37 (Fla. 1982) (indicating that a witness should be excluded from testifying because of a rule violation only in exceptional circumstances); Dumas v. State, 350 So.2d 464 (Fla. 1977) (same); Atkinson (same).

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Bluebook (online)
466 So. 2d 1167, 10 Fla. L. Weekly 882, Counsel Stack Legal Research, https://law.counselstack.com/opinion/del-monte-banana-co-v-chacon-fladistctapp-1985.