Gonzalez v. Mercy Hospital, Inc.
738 So. 2d 955
| Fla. Dist. Ct. App. | 1999

Lead Opinion

COPE, J.

Plaintiffs-appellants Blanca and Aníbal Gonzalez appeal from a judgment in favor of defendant-appellee Mercy Hospital, Inc. We reverse.

In May 1996 Aníbal Gonzalez was recovering from heart surgery at Mercy Hospital. During a visit to his room, his wife Blanca slipped and fell, breaking her hip. The plaintiffs contended that Blanca slipped in water spilled on the floor by a hospital employee, a claim denied by the hospital. Plaintiffs sued the hospital for negligence and the matter was tried before a jury.

The record of the trial reveals that the trial judge actively participated in cross-examining witnesses on substantive issues. In ruling on objections, the court commented, in front of the jury, on what the evidence had shown. On several occasions the trial court apparently offered objections to questions by plaintiffs’ counsel when none had been stated by defendant’s counsel.* We conclude a new trial is required.

The Florida Supreme Court has said, “[A]n inappropriate comment on the testimony or the expression of a judicial opinion on the credibility of witnesses or the value of certain evidence often leads a jury of laymen to an erroneous conclusion.... In the mind of the average juror the trial Judge is the arbiter and ‘final word’ on any matter upon which he expresses an opinion.” Gendzier v. Bielecki, 97 So.2d 604, 607 (Fla.1957). The Evidence Code provides that “[a] judge may not sum up the *957evidence or comment to the jury upon the weight of the evidence, the credibility of the witnesses, or the guilt of the accused.” § 90.106, Fla. Stat. (1997).

“Excessive participation of the trial judge, such as by excessive questioning of witnesses, may amount to usurping the functions of counsel and be an abuse of the discretion and latitude of the court in such respects, with resultant injury to the rights of a party or parties.” Bumby & Stimpson, Inc. v. Peninsula Utilities Corp., 169 So.2d 499, 501 (Fla. 3d DCA 1964). “The very status of the judge as interrogator inevitably means that the answers given by the witness will assume an importance in the minds of jurors otherwise lacking if counsel had instead asked the questions.” Moton v. State, 659 So.2d 1269, 1270 (Fla. 4th DCA 1995).

Mercy Hospital argues that these matters were not adequately presented to the trial court and therefore were not preserved for appellant review. We disagree. In this case there were three motions for mistrial at which plaintiffs set forth their objections at length and a fourth motion for mistrial at the conclusion of the case which renewed all prior objections. We conclude that the issues were thoroughly preserved for appellate review.

Reversed and remanded for a new trial.

It is possible, however, that when defense counsel stood to make an objection the court anticipated the objection before it could be stated by trial counsel. From an appellate standpoint the cold transcript reflects rulings on objections when no objection was voiced by counsel.



Rehearing

On Motion for Rehearing and Clarification

COPE, J.

By a motion for rehearing, Mercy Hospital presses its claim that the issues on which this-court has reversed the judgment were not properly preserved for appellate review. We disagree and adhere to the previously-issued opinion.

For present purposes, we need only address plaintiffs’ first, and third, motions for mistrial.1 During plaintiffs’ direct examination of two of its principal witnesses, the trial court interrupted to comment, within the hearing of the jury, regarding what the evidence had, and had not, shown. The court in each case then propounded a cross-examination-type question to the witness on a material issue in the case. There can be no doubt that this suggested the court’s view of the facts to the jury. Although the court acted with the idea of expediting the proceedings, the remarks and questions caused serious, irremediable harm to the plaintiffs’ case.2

In each instance plaintiffs’ counsel immediately asked for a sidebar conference.3 In each case the sidebar conference was refused until the witness had finished testifying and had left the witness stand. When counsel were then allowed to approach the bench, plaintiffs’ counsel moved for a mistrial on the basis that the court’s comments on the evidence and examination of the witnesses had deprived the plaintiffs of a fair trial. The motions for mistrial were denied. As the motions for mistrial were promptly made at the first opportunity, we reject the Hospital’s claim that there was a waiver or undue delay on the part of plaintiffs.

The Hospital contends, however, that in addition to moving for a mistrial, the plaintiffs were required to make an objection4 and request a curative instruc*958tion. That argument is not well taken. Here the trial court’s comments to the jury regarding what the evidence had shown, and the propounding of cross-examination-type questions to material witnesses on material issues in the case created harm to the plaintiffs’ case which could not be cured by the simple sustaining of an objection or the granting of a curative instruction.5 The stating of an objection or the requesting of a curative instruction would have been superfluous in these circumstances. See James v. State, 695 So.2d 1229, 1234 (Fla.1997), cert. denied, — U.S. -, 118 S.Ct. 569, 139 L.Ed.2d 409 (1997); Fogelman v. State, 648 So.2d 214, 219 (Fla. 4th DCA 1994); Millett v. State, 460 So.2d 489, 492 (Fla. 1st DCA 1984).

For the stated reasons, the motion for rehearing is denied.

Clarification granted; rehearing denied.

. After the first motion for mistrial was denied, plaintiffs made a second motion for mistrial at the beginning of the next trial day. This renewed, and expanded on, the first motion for mistrial. At the conclusion of the case, plaintiffs made their fourth motion for mistrial, which renewed the three previously-made motions.

. In making the comments and asking the questions, the trial judge was simply attempting to speed up the trial of the case. The judge stated, and we agree, that the judge had no intention of taking sides in the litigation. As explained in our original opinion, regardless of the judge’s subjective intention, such comments and questions from the bench in a jury trial have great influence on the jury, and should be avoided.

. In the case of the third motion for mistrial, plaintiffs’ counsel first objected and then immediately requested a sidebar conference.

. Plaintiffs did immediately object in conjunction with the third motion for mistrial, but not the first.

. After the first motion for mistrial the court voluntarily gave what amounted to a curative instruction. It is our view that the curative instruction was inadequate to correct the harm which had been done to plaintiffs' case.