Summary
In Kleiman v. Zap, 297 So.2d 314 (Fla. 3rd DCA 1974), this court affirmed a verdict in favor of the appellee-driver despite the fact that it had been disclosed inadvertently during the trial that he had been dismissed from a traffic charge growing out of the subject accident. It was reasoned that the appellants' failure to move for a mistrial was not excused by their belief that the motion would have been "fruitless."
Summary of this case from Nadler v. Home Ins. Co.Opinion
No. 73-1095.
June 25, 1974. Rehearing Denied July 30, 1974.
Appeal from the Circuit Court, Dade County, Rhea Pincus Grossman, J.
Sidney B. Shapiro, Miami, for appellants.
Papy, Levy, Carruthers Poole, Coral Gables, for appellee.
Before BARKDULL, C.J., and PEARSON and HAVERFIELD, JJ.
The defendants who are also counterclaimants, Alex Kleiman and Aviva Kleiman, appeal a final judgment based on a jury verdict in an automobile collision personal injury action. Appellants' principal reliance is upon claimed error in the trial court's failure to declare a mistrial upon the disclosure that the appellee-driver had been dismissed from a traffic charge growing out of the accident. The disclosure of the traffic charge was inadvertently made and is not a subject of an assignment of error.
The failure of the court to declare a mistrial upon the disclosure of the dismissal of the traffic charge is not reversible error on this record because: (1) appellants failed to move for a mistrial and are not excused from failure to make the motion by their belief that the motion would have been fruitless, and (2) the court's failure to declare a mistrial was harmless error under the facts of this case. Accord, Wallace v. Rashkow, Fla.App. 1972, 270 So.2d 743, 745.
We have examined the remaining points presented and find that they do not present reversible error.
Affirmed.