Murray-Ohio Mfg. Co. v. Patterson

385 So. 2d 1035

• Court: District Court of Appeal of Florida
• Decided: June 4, 1980
• Docket: 79-42
• Status: Published

Opinion

385 So.2d 1035 (1980)

The MURRAY-OHIO MANUFACTURING COMPANY, a Foreign Corporation, and California Union Insurance Company, a Foreign Corporation, and Employers Reinsurance Corporation, a Foreign Corporation, Appellants,
v.
Ernest B. PATTERSON and June M. Patterson, Appellees.

No. 79-42.

District Court of Appeal of Florida, Fifth District.

June 4, 1980. Rehearing Denied July 17, 1980.

Ernest J. Rice, Orlando, for appellants.

Hale Baugh of Stromire, Westman, Lintz, Baugh, McKinley, Antoon, Clifton & Pearce, P.A., Cocoa, for appellees.

SCHWARTZ, ALAN R., Associate Judge.

The defendant below, the manufacturer of an allegedly defective lawn tractor, appeals from a judgment rendered against it upon an adverse jury verdict in a strict liability case. The only point which gives us pause concerns the rebuttal portion of the plaintiffs' final argument, in which counsel improperly referred to the Ford Pinto and Firestone 500 cases notwithstanding the fact that the trial judge had twice sustained objections to such references during the course of the trial. While we certainly do not approve of this conduct, the record shows that defense counsel made no contemporaneous objections to the argument at the time it was made and raised the issue below only in a motion for mistrial after the jury had been instructed and had retired to consider its verdict. Since the comment, taken in context, was not so inflammatory as to destroy the defendants' right to a fair trial and thus to constitute fundamental error, it is apparent that the mistrial motion came far too late to preserve the issue for review. See State v. Cumbie, 380 So.2d 1031 (Fla. 1980); Baggett v. Davis, 124 Fla. 701, 169 So. 372 (1936); Bishop v. Watson, 367 So.2d 1073 (Fla.3d DCA 1979); Sears, Roebuck & Co. v. McAfoos, 303 So.2d 336 (Fla.3d DCA 1974); H.I. Holding Co. v. Dade County, 129 So.2d 693 (Fla.3d DCA 1961). We find no other error, and the judgment below is therefore

AFFIRMED.

COBB and FRANK D. UPCHURCH, Jr., JJ., concur.