Wallace v. RashkowWallace v. Rashkow
Appellant, plaintiff in the trial court, seeks review of three adverse final judgments entered by the trial court pursuant to a jury verdict in a negligence action.
The facts of the instant case arose out of a four-car rear-end accident, which occurred in the early afternoon of January 25, 1970, on Interstаte 95 near the 103rd Street interchange in Miami, Florida. The first vehicle, driven by the appellee, Finkle, allegedly had motor trouble and coasted to a stop. The second vehicle, driven by the
The first question raised on appeal is whether the trial court erred in refusing to instruct the jury аs to the limited purpose of the witness’ extrajudicial statement, thereby permitting the jury to consider said statement as substantive evidеnce to the prejudice of the appellant.
Although there has been considerable comment and criticism of the rulе governing extrajudicial statements made by a witness who is not a party, the law as cited in 133 A.L.R. 1455 is as follows:
“The general rule is almost universаlly recognized that evidence of extrajudicial statements made by a witness who is not a party and whose declarations аre not binding as admissions is admissible only to impeach or discredit the witness, and is not competent as substantive evidence of the facts to which such statements relate.”
This rule has been under attack for some time. Professors Wigmore and McCormick are unanimоus in their opposition. See 3 Wigmore Evidence 3rd Ed., Sec. 1018(b) and McCormick on Evidence, Sec. 39, page 73. It is generally recognizеd, in other jurisdictions, that the literal enforcement of the rule places a great obstacle in the way of effective сross-examination. Chicago, St. Paul, Minneapolis and Omaha Railway Co. v. Delmar E. Kulp, 102 F.2d 352 (CCA 8th); United States v. Miles, 413 F.2d 34 (CCA 3rd 1969); State of California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489; Jett v. Commonwealth, Ky., 436 S.W.2d 788.
It appears that Florida courts have not ruled on the subject since 1911. In the case of Tomlinson v. Peninsular Naval Stores Co., 61 Fla. 453, 55 So. 548, the Supreme Court made the following statement:
“Prior inconsistеnt statements may affect credibility, but they are not evidence to prove a fact not otherwise shown.”
The Tomlinson casе involved an action for commissions by a real estate agent. The opinion consists of three short paragraphs, the last of which is the above-quoted statement. While the case is by no means illuminating on the legal issue involved, it appears to assеrt certain qualifying language to the general rule. That language is the last three words of the quoted phrase, to-wit: “not otherwise shоwn“. In the decisions cited by the appellant, each involve a prior extrajudicial
The appеllant states that the lower court should have given the jury an instruction not to consider the prior statement as substantive evidence on the main issue, but solely as bearing on the credibility of the witness. As noted in the previous A.L.R. annotation such an instruction is mere verbal ritual. It is doubtful that most jurors would understand it, let alone attempt to follow it. In this case, the manner in which the verdicts were rendered shows that thе jury gave every consideration to the respective parties’ positions. They allowed the appellant‘s wife to recover $60,000.00 since she was an innocent bystander. In turn, they found the appellant contributorily negligent and denied his claim.
In conclusiоn, to disallow the use of the prior statement would be basically misguided since there was ample “substantive” first-hand testimony of like purport with the impeaching statement to support appellees’ position that the appellant was at fault, too.
In any event, Rutherford‘s extrajudicial statement was, at most, harmless error. The test to be applied by the appellate court in determining whether prejudicial error has been committed is whether, but for the error complained of, a different result would havе been reached at the trial. Cornelius v. State, Fla. 1950, 49 So.2d 332, Eggers v. Phillips Hardware Co., Fla. 1956, 88 So.2d 507. This requires considering the error in light of the entire transcript to determine if a miscarriage of justice has occurred. Williams v. State, Fla.App. 1970, 233 So.2d 428,
The second point raised on appeal is also answered in the negative. The trial court did not err in denying appellant‘s motion for directed verdict. This was a question of fact properly decided by the jury. Pensacola Transit Co. v. Denton, Fla.App. 1960, 119 So.2d 296. Stark v. Vasquez, Fla. 1964, 168 So.2d 140. Keyser v. Brunette, Fla.App. 1966, 188 So.2d 840. O‘Brien v. Francis, Fla.App. 1970, 231 So.2d 13.
Affirmed.