Opinion
No. BM-12.
September 23, 1987. Rehearing Denied October 29, 1987.
Appeal from the Circuit Court for Duval County, Louis C. Corbin, J.
V. James Facciolo and Thomas F. McMorrow, of Cowles, Hayden, Facciolo, McMorrow Barfield, P.A., Jacksonville, and Thomas M. Ervin, Jr., and Robert M. Ervin, Jr., of Ervin, Varn, Jacobs, Odom Kitchen, Tallahassee, for appellant.
Charles Cook Howell, III, of Commander, Legler, Werber, Dawes, Sadler Howell, Jacksonville, and Robert P. Smith, Jr., of Hopping, Boyd, Green Sams, Tallahassee, for appellee.
Sharp Electronics Corporation appeals a judgment awarding damages for injuries suffered by William Romeka caused by defects in a microwave oven manufactured by Sharp. Sharp raises eight points on appeal.
Points one through seven attack discretionary rulings on the admissibility of testimony. We have carefully reviewed the record and conclude that appellant has failed to demonstrate that these rulings constituted an abuse of discretion resulting in harmful error.
The eighth point complains that during final argument counsel for appellees made a number of highly improper and inflammatory statements which were so prejudicial to Sharp that a new trial must be ordered. We agree that some of the statements were improper and should not be condoned, and caution trial counsel to be more attentive to the scope of permissible argument. Likewise, it appears that the trial judge could have been more direct and definitive in his rulings on some of appellant's objections to the argument. After carefully reviewing the final arguments in their entirety in context with the trial record as a whole, however, we are unable to conclude that counsel's improper statements so affected the trial and the jury's verdict as to amount to harmful error and require the case to be tried again.
AFFIRMED.
THOMPSON and ZEHMER, JJ., concur.
BARFIELD, J., dissents with written opinion.
I dissent.
The defendant has a right to lose in a fair fight. In this personal injury case a series of otherwise harmless errors concluded with the trial judge endorsing a plea by plaintiff's counsel that the jurors not let their judgment interfere with their passions and prejudices. Although defense counsel repeatedly objected to improper argument by plaintiff's counsel, those objections were fruitless. In only one instance did the trial judge sustain a defense objection.
The most offensive intrusion by the trial judge during closing argument came when the plaintiff's counsel referred to defendant's "infinite resources." There was no issue of punitive damages in this case and such comment, however disguised, was improper. The trial judge's response to the objection and motion for mistrial was, "Mr. Howell, just to clear the record, I think probably `infinite resources' is an overstatement. I think only God has those."
This trial concluded much like a boxing match in which the defendant stands inside the ring with gloves on, and the plaintiff and judge stand outside the ring and throw chairs.