Reeser v. Boats Unlimited, Inc.

432 So. 2d 1346 (1983)

Dick REESER and Margaret Reeser, His Wife, Appellants,
v.
BOATS UNLIMITED, INC., a Florida Corporation; and Bruce Nescher d/b/a Sleek Craft Boats, Appellees.

Nos. 81-685, 81-856 and 81-1146.

District Court of Appeal of Florida, Fourth District.

May 4, 1983. Rehearing Denied June 17, 1983.

Fleming, O'Bryan & Fleming, and Ronald FitzGerald of FitzGerald, Taylor & Zwicky, Fort Lauderdale, for appellants.

Michael C. Spring of Carey, Dwyer, Cole, Selwood & Bernard, P.A., Miami, for appellee Boats Unlimited, Inc.

Todd A. Cowart of Blackwell, Walker, Gray, Powers, Flick & Hoehl, Miami, for appellee Sleek Craft Boats.

DELL, Judge.

Mr. and Mrs. Reeser, plaintiffs below, appeal from a judgment entered upon a jury verdict finding no negligence on the part of Sleek Craft Boats and Boats Unlimited, Inc., the manufacturer and retailer, respectively, of a boat in which Mrs. Reeser sustained personal injuries. We reverse.

Appellants filed a three count complaint, stating causes of action in strict liability, breach of warranty, and negligence. In essence, they complained that the lack of a safety switch which would prevent the boat, a jet drive vessel, from starting while in gear, caused Mrs. Reeser's injuries. By affirmative defense, appellees raised misuse and abuse of the product and appellants' comparative negligence.

Appellants and some friends went on an evening excursion in the boat. When they returned to the dock at 11:00 that night, Mr. Reeser left the boat to help his passengers carry their belongings to their car. Mrs. Reeser remained in the boat. On his return, Mr. Reeser saw that the boat, which he had not tied to the dock, had drifted away. He instructed his wife to turn the key on and off again immediately, in order to give the boat enough forward momentum to bring it back to the dock. According to appellants' testimony, when Mrs. Reeser turned on the key, the boat rose in the air, achieved a 90 degree turn, and took off down the canal at a high rate of speed. It crashed into docked boats. Mr. Reeser went to the marina's night watchman for help. He and the night watchman had a fight, during which the watchman shot Mr. Reeser three times. When Mrs. Reeser was discovered at 4:30 A.M., the boat's throttle was in the full forward thrust position.

Mr. Reeser's credibility was a major issue at trial. Appellants challenged the admission of certain evidence which tended to contradict or impeach him, and further challenged certain rulings on requested jury instructions, and the court's assessment of costs.

This cause of action accrued before July 1, 1979, and the trial ended before October 1, 1981. Therefore, the 1977 rules of evidence govern. See, §§ 90.103, Fla. Stat. (1979), and 90.103, Fla. Stat. (1981). On retrial, the Florida Evidence Code will apply. § 90.103, Fla. Stat. (1981).

Appellants had sued the night watchman and his employer in battery, based on the shooting of Mr. Reeser. In a discovery deposition taken in the battery case, Ms. Crossin, one of appellants' passengers, testified that while he was in the hospital, Mr. Reeser told her that

He told Margaret [Mrs. Reeser] to put it in reverse or something and instead she put it in forward and the boat went out of the water and knocked over boats and that he ran and, you know, got a security guard, whatever, and said, "I need help, my wife's been hurt," and he got shot.

Appellees introduced this deposition to contradict Mr. Reeser's statement that he had put the throttle control in neutral when he left the boat, and also to support the inference that Mrs. Reeser's negligence was the sole cause of her injuries. Appellants objected on the grounds that this discovery deposition could not be admitted as former testimony under Section 92.22, Florida Statutes (1977), which provides:

In the event it be made to appear to the satisfaction of the court that any evidence used at a trial of a civil case, whether oral or written, and incorporated in ... the record proper cannot be had then ... the evidence incorporated in the record of the trial, may be used as evidence upon any subsequent trial or hearing of the case, or in any other civil cause or civil proceeding, as to any matter in issue at a previous trial or hearing; and further, in the event that such evidence is not so preserved as before stated, then the same may be used at a subsequent trial or hearing, or in any other civil cause or civil proceeding involving substantially the same issue; if:

... .

(3) That the issue is substantially the same in both cases;

(4) That a substantial reason is shown why the original witness or document is not produced; (emphasis added).

We find error for several reasons. First, appellee did not establish the admission in evidence of this discovery deposition in the battery trial. Second, assuming the admission of this deposition in the battery trial, appellees did not show that the matter of the Reesers' handling of the boat was ever in issue in the battery trial. Third, appellee did not show that this deposition was included in the record of the battery trial. Fourth, assuming this deposition was admitted but not incorporated in the record of the battery trial, appellees did not show how the issue of battery, an intentional tort, upon Mr. Reeser is substantially the same as the issue of strict liability, breach of warranty, negligence or comparative negligence. Finally, appellees did not adequately demonstrate unavailability of Ms. Crossin.^[1] The trial judge should not have admitted this evidence and we cannot consider the admission of this evidence harmless error. Even though on retrial, Section 90.804(2)(a) may permit the admission of this deposition "If the party against whom the testimony is offered ... had an opportunity and similar motive to develop the testimony... ." (Emphasis added.) As mere background in the battery trial, it is unlikely that appellants had any motive to develop this testimony.

Appellants also argue that during the cross-examination of Officer Healy the trial court permitted appellee to present, over their objection, inadmissible and prejudicial evidence.

Appellants called Officer Healy to testify about his investigation of the night in question. During his cross-examination, appellees elicited the fact that Hayes, a passenger in the boat, made a statement to another police officer, and that Officer Healy took that officer's report into consideration in making his own report. Appellees' counsel then asked, "Did your investigation indicate that the same Thomas Hayes was out on bond at the time for selling marijuana to an undercover policeman?" Appellants objected on the ground that to submit something about the background of Hayes was not proper trial tactics. Appellees' counsel responded that he had a copy of an order of the clerk of the court. Appellants' counsel asked that the jury be excused. Without responding to the request to excuse the jury, the judge asked appellees' counsel what he had in his hand. Within the sight and hearing of the jury, appellees' counsel gave the judge a document and announced, "It's a certified copy of the Criminal Court with the name Thomas Hayes, ... ."

Section 90.08, Florida Statutes (1977), provides that no person shall be disqualified to testify as a witness by reason of conviction of crime, and further provides:

Evidence of such conviction, including the fact that the prior conviction was for the crime of perjury, may be given to affect the credibility of the said witness, and such conviction may be proved by questioning the proposed witness, or if he deny it, by producing a record of his conviction. [Emphasis added.]

Section 90.610, Florida Statutes (1979), provides:

(1) A party may attack the credibility of any witness, including an accused, by evidence that the witness has been convicted of a crime if the crime was punishable by death or imprisonment in excess of 1 year under the law under which he was convicted . .. . [Emphasis added.]

Both statutes refer to impeachment of a witness by proof that the witness himself has been convicted of some crime. Neither statute permits the elicitation of the nature of the crime, because any additional light on his credibility would not compensate for the possible prejudicial effect on the minds of the jurors. See, e.g., Davis v. State, 397 So. 2d 1005 (Fla. 1st DCA 1981) [construing Section 90.610; Goodman v. State, 336 So. 2d 1264 (Fla. 4th DCA 1976), cert. denied, 342 So. 2d 1103 (Fla. 1977) [construing Section 90.08].

Permitting, even inviting, appellees' counsel to disclose the nature of the crime was error. Further, appellees did not attempt to impeach the witness himself, but rather his hearsay source, thrice removed. This impermissible tactic to get inadmissible evidence before the jury for its prejudicial effect requires reversal. Rommell v. Firestone Tire & Rubber Co., 394 So. 2d 572 (Fla. 5th DCA 1981).

Appellees' counsel further implied, from a hearsay source which he never sought to introduce in evidence, that Mr. Reeser at some time in the past, had beaten Mrs. Reeser. He also introduced evidence that someone, whom the impeachment witness could not identify because he was not present, vandalized the office of a different marina. Neither of these items was relevant to any issue in the case sub judice, both were highly prejudicial and require reversal.

Appellants challenge two of the trial judge's rulings on requested jury instructions. Objection is essential to preserve the matter for appellate review. The charge conference was held off the record. At the conclusion of the conference, the trial judge gave the parties the opportunity to make objections for the record, but appellants did not avail themselves of this opportunity and thus have waived any error.

Since we reverse and remand this case for a new trial on the merits, we also reverse the cost judgment. When the trial court taxes costs at the conclusion of the new trial, it shall take into consideration the Supreme Court's Statewide Uniform Guidelines for Taxation of Costs in Civil Actions.^[2]

REVERSED and REMANDED.

LETTS, C.J., and OWEN, WILLIAM C., Jr., Associate Judge, concur.

NOTES

[1] Appellees told the court that Ms. Crossin had been served with a subpoena. However, that subpoena was for the original trial date, some eight months before the trial finally occurred. Appellees said they sent her a notice of the new trial date by ordinary mail, and since the post office did not return it, they assume she received the notice and wilfully refused to attend. However, immediately thereafter, appellees told the court that Ms. Crossin had remarried and they did not know her whereabouts. They stated that they did not know her new name, her mother's name, or her phone number. (She was not listed in the directory.) They did not show any effort, prior to trial, to learn Ms. Crossin's new name, or her mother's name. They did not show that they sent anyone to the address to which they had mailed the notice of trial to ascertain if Ms. Crossin still resided there. They did not show that they queried the post office, the telephone company or other passengers on the boat about her whereabouts.

[2] On October 28, 1981, the Florida Supreme Court issued an administrative order entitled In re: Statewide Uniform Guidelines for Taxation of Costs in Civil Actions, which appears in 7 F.L.W. 517 (Fla. 1981). All emphasis is by the Supreme Court.

IN RE:

STATEWIDE UNIFORM GUIDELINES FOR TAXATION OF COSTS IN CIVIL ACTIONS.

ADMINISTRATIVE ORDER

The Florida Conference of Circuit Judges requests permission to publish and distribute to all judges in the State of Florida for their guidance the appended uniform guidelines for taxation of costs in civil actions.

Permission is hereby granted to publish and distribute the guidelines, but without prejudice to the rights of any litigant objecting to the application of the guidelines to a specific case on the basis that the assessment of costs pursuant to the guidelines is contrary to applicable substantive law. It is recognized that no approval of these guidelines shall relieve the trial judge of his responsibility under the law to assess the proper costs. This order is not to be construed as any intrusion on that responsibility of the trial judges.

These guidelines were adopted by the Florida Conference of Circuit Judges at its business session in Panama City on September 23, 1981; have been endorsed by the Board of Governors of The Florida Bar; and have been endorsed by both the Trial Lawyers Section of The Florida Bar and The Florida Bar's Special Commission to Reduce Court Costs and Delay. The Court is confident that the appended guidelines which were authored by experienced circuit judges and lawyers are reasonable and will enable the judges of this state to construe and apply uniformly the law.

/s/ Alan C. Sundberg Chief Justice

COST ITEM

1. Depositions
A. Deposition of parties                    Cost of original deposition,
or witnesses read into                   plus Court Reporter's
evidence at trial in                     per diem, plus
their entirety.                          cost of one copy, be
taxed.
B. Deposition of parties                    Cost of original pages
or witnesses, when                       actually used, plus
only a portion of the                    Court Reporter's per
deposition is read at                    diem, plus cost of one
trial for impeachment                    copy of pages actually
purposes or in evidence.                 used, be taxed if only
a portion of the deposition
is read into
evidence. The cost of
additional pages, including
if appropriate,
the entire deposition,
may be taxed if the
prevailing party can
logically demonstrate
to the Court that the
additional pages for
which taxation is
sought were reasonably
necessary under the
facts and circumstances
of the case, in the
event of which the
court should tax the
cost of such additional
pages or the deposition
as a whole, together
with one copy thereof.
If only a portion of a
deposition is used at
trial solely for impeachment
purposes, the
same rule should apply
unless the presiding
judge determines that
the portions used did
not, in fact, really
impeach the witness, in
which case nothing
should be awarded for
the deposition. The
burden should be upon
the prevailing party to
point out the pages
actually used and, if
used for impeachment,
to show how and in what
manner the portions
read actually impeached
the witness.
C. Deposition of parties                    The cost of the original
or witnesses used to                     entire deposition,
successfully support a                   plus Court Reporter's
Motion for Summary                       per diem, plus cost of
Judgment.                                one copy, should be
taxed.
D. Depositions of parties                   The cost of the original
or witnesses used to                     entire deposition,
defeat a Motion for                      plus Court Reporter's
Summary Judgment,                        per diem, plus cost of
but not used for any                     one copy, should be
purpose at trial.                        taxed.
E. Depositions of witnesses                 The cost of such depositions
not used at                              should not be
trial for any purpose                    taxed unless the prevailing
and not used to support                  party can logically
or defeat a                              demonstrate that
Motion for Summary                       the taxing of such
Judgment.                                deposition (under the
facts and circumstances
of the case) was reasonably
necessary. If
the Court concludes
that the taking of the
deposition was reasonably
necessary, then
the cost of the deposition,
plus Court Reporter's
per diem, plus
the cost of one copy,
should be taxed.
F. Cost of copies of depositions            If used in whole or in
of parties or                            part at trial, same
witnesses, when the                      rule as set out in 1B
deposition is used in                    above should be followed.
whole or in part at                      If used to defeat
trial, or is used in                     a Motion for Summary
whole or in part in                      Judgment, cost of
defeating a Motion For                   one entire copy should
Summary Judgment.                        be taxed.
2. Expert Witnesses
A. Charges made by the                      Such charges should be
expert for examinations                  considered by the Court
or inspections                           in setting a reasonable
or research prior to                     fee, especially in such
trial for purpose of                     cases as Eminent Domain
enabling witness to                      where the expert
express expert opinions.                 must thoroughly inspect
the property, check
comparable sales, etc. The
Court should consider
the nature of the expert
testimony; whether
or not the expert witness
was really needed,
the entire facts and
circumstances of the case;
and then award such
monetary sum for preparation
as the facts of
the case warrant.
B. Charges made by expert                   Such charges or costs
witnesses for reports                    should not be taxed.
submitted to or
conferences with attorney
prior to trial.
C. Charges of expert witnesses              Such charges should not
for travel time                          be taxed for experts
for attendance at trial,                 with offices in same
i.e. charges on an                       city as Courthouse.
hourly basis or otherwise                For witnesses from out
for time consumed                        of city, such charges
in traveling from office                 should generally not be
to Courthouse.                           taxed, but trial judge
should be free to exercise
his or her best
judgment depending upon
all the facts of the
particular case involved.
D. Charges of expert witnesses              (Same as 2C above)
for travel expenses
from office to
Courthouse.
E. Expert witness fee for                   A reasonable sum for
testimony at trial.                      such fee should be
taxed, taking all factors
of the case into
consideration, including
the time spent by
the expert in actual
testimony; the expertise
required and the
novelty of the situation;
the prevailing community
rates for such
services to the extent
they can be ascertained;
the degree of "expertness"
of the witness; and
the witness' qualifications,
training and experience.
F. Charges made by expert                   If the expert is at the
witnesses for time                       Courthouse for the
spent at the Courthouse                  convenience of the attorney
waiting to testify.                      calling him so as
to afford the opportunity
for conferences
during recesses or during
progress of the
trial, such "waiting
time" charges should
not be taxable. If the
expert is caused to
wait due solely to the
failure of the attorney
to properly schedule
his appearance, such
"waiting time" should
not be taxed since most
attorneys and judges
will allow an expert to
be called out of turn
in order to conserve
the expert's time. If,
however, the expert is
forced to wait due to
trial delays not occasioned
by the witness
or by the attorney
calling him, the trial
judge should consider
such charges and, if
justified, award a
reasonable amount therefor.
G. Expert witness fee                       Such charges should not
charged for the giving                   be taxed as a cost item.
of a deposition when
the deposition is not
used in whole or in
part at the trial.
H. Expert witness fee                       A reasonable sum for
charged for the giving                   such fee should be
of a deposition which                    taxed, taking all factors
is used at trial.                        of the case into
consideration, including
the time spent by
the expert in actual
testimony; the expertise
required and the
novelty of the situation;
the prevailing
community rates for
such services to the
extent they can be
ascertained; the degree
of "expertness" of the
witness; and the witness'
qualifications,
training and experience.
3. Travel expenses of prevailing            Such expenses should
attorney incurred                        not be taxed as costs.
in connection with the
taking of depositions out
of the City or State.
4. Travel expenses of non-expert            If the testimony of
witness who resides                      such out of state witness
outside of state for attendance          is presented at
at trial.                                trial, the statutory
mileage allowed for
subpoenaed witnesses
from the Florida State
line to the City where
the trial is held, and
return, should be taxed
as costs.
5. Witness fees for non-expert              That the same statutory
witnesses who reside                     witness fee provided
outside of state, but                    for subpoenaed witnesses
who attend trial and testify             be awarded for
pursuant to arrangements                 such out of state and
made with them by                        non-subpoenaed witnesses.
the prevailing party.
6. Cost of long distance telephone          That such costs not be
calls to witnesses,                      taxed.
both expert and non-expert,
arranging for witness
conferences, or for scheduling
of a deposition, or
for the witness to attend
trial.
7. Cost of Xerox or other machine           The cost of copies of
reproduced copies.                       documents (contracts,
promissory notes, etc.)
actually filed in the
Court file should be
taxed. The cost of
copies of documents
(contracts, business
records, hospital records,
etc.) actually
filed and received in
evidence during course
of trial should be
taxed. Generally, the
cost of copies obtained
during course of discovery
and not used at
trial should not be
taxed, but the presiding
Judge should exercise
his discretion on
the taxability of the
cost of such copies if
the facts of the entire
case warrant an award
of the cost of such
copies.
8. Cost of "daily copy" of                  Only the cost of such
trial transcript.                        portion as may be used
for impeachment should
be taxed. Portions
used for consultation
with the client or other
expert witnesses
should not be taxed.