Russell v. Guider

362 So.2d 55 (1978)

Wilburn T. RUSSELL and Janice B. Russell, Appellants,
v.
Jane Ann GUIDER, Helen N. Guider, and United Services Automobile Association, a Corporation Authorized to Do Business in the State of Florida, Appellees.

No. 77-1531.

District Court of Appeal of Florida, Fourth District.

August 2, 1978. Rehearing Denied October 3, 1978.

Robert G. Ferrell, III, of Ferrell & Jacobus, Melbourne, for appellants.

Barbara Kane of Smalbein, Eubank, Johnson, Rosier & Bussey, P.A., Rockledge, for appellees.

GREEN, OLIVER L., Associate Judge.

The plaintiff-appellants assign as error certain questions by defense counsel during the voir dire examination in the trial below. They also assign as error comments by defense counsel with regard to this same subject matter during closing arguments. These questions and comments by defense counsel were clearly improper.

The action below was, in general, a typical automobile collision case with an admission of liability. Defense counsel made more than one blatant attempt to inject an emotional issue before the jury concerning a possible relationship between verdicts in such cases generally and the rising insurance premium rates. Although we are firm in our censure of defense counsel for this clearly improper tactic, we are mindful that plaintiffs' counsel failed to either move for a mistrial or for an instruction that the jury disregard the comments as having no place in the consideration of its verdict.

No error on behalf of the trial judge has, therefore, been established, and although these acts by defense counsel were improper, we do not find them to be error of a fundamental nature. See Griffith v. Shamrock Village, 94 So.2d 854 (Fla. 1957); Seaboard Air Line Railroad Co. v. Strickland, 88 So.2d 519 (Fla. 1956); Tampa Transit Lines v. Corbin, 62 So.2d 10 (Fla. 1953); Apalachicola Northern Railroad Company v. Tyus, 114 So.2d 33 (Fla. 1st DCA 1959).

The final judgment is affirmed.

DAUKSCH and BERANEK, JJ., concur.