Yanzito v. Wagner

244 So. 2d 761, 1971 Fla. App. LEXIS 7062

• Court: District Court of Appeal of Florida
• Decided: February 25, 1971
• Docket: No. N-54
• Status: Published

Opinion

PER CURIAM.

The appellants, plaintiffs below, appeal from a judgment in an action for personal injuries entered upon a jury verdict in favor of the appellees-defendants.

At the trial, after the minor appellant had testified both in chief and on cross-examination, appellant’s counsel on redirect examination sought to read to the jury the appellant’s deposition taken eighteen months prior to the trial. Appellees’ objection was sustained, but the court received the entire deposition as a proffered evidentiary exhibit. Appellants now contend that it was reversible error for the trial judge to refuse to allow them to read the substance of the proffered deposition, since the statements therein more accurately expressed the recollections of the minor appellant.

With this contention we cannot agree. The minor appellant was examined directly and, upon cross-examination by appellees’ counsel, he adhered to the version of the accident given by him on direct examination. Any variance in his testimony given in a prior deposition was not properly the subject of redirect examination. If the minor’s memory needed to be refreshed, this should have been done by his counsel either before trial or during his initial direct examination. We find no abuse of discretion on the part of the trial judge in refusing to allow appellants to read the substance of the minor’s deposition.

We have examined appellants’ remaining point on appeal and find it to be without merit. Accordingly, the judgment appealed is hereby affirmed.

JOHNSON, C. J., and CARROLL, DONALD K., and SPECTOR, JJ„ concur.