Opinion
No. 80-1987.
October 20, 1981. On Rehearing January 12, 1982.
Appeal from the Circuit Court, Dade County, Sam I. Silver, J.
Adams Ward and Robert C. Ward, Miami, for appellants.
Horton, Perse Ginsberg and Mallory H. Horton, Miami, Rosen Rosen, Miramar, for appellees.
Before BARKDULL, SCHWARTZ and BASKIN, JJ.
Before BARKDULL, SCHWARTZ and BASKIN, JJ.
We affirm the trial court order granting plaintiff Blanca Nieve Sosa a new trial on the ground that during defense counsel's argument to the jury he commented that plaintiff Sosa had received workers' compensation payments. The record contains no evidence to support his comments.
Jose Lanza was a news carrier for The Miami News. As participants in a newspaper subscription contest, he and several other news carriers were taken to northwest Miami one evening by a Miami News distribution manager. During the evening, the distribution manager saw Jose Lanza and another news carrier "fooling around." In order to separate them, he ordered the other news carrier into the car. Because Jose Lanza did not want to be left alone in a strange neighborhood, he ran beside the car, pleading to be allowed to enter the car. His pleas were ignored. After a short time, the driver of the moving car felt a bump; Jose was lying in the street. He died a few days later. He was fourteen years old. Blanca Sosa, his mother, the personal representative of her son's estate, filed a wrongful death action against the publishers of The Miami News, Knight-Ridder Newspapers, Inc.
The distribution manager and his insurance company were also named as defendants. Plaintiff voluntarily dismissed those claims.
Knight-Ridder maintained that under Chapter 440, Florida Statutes (1975) its payment of workers' compensation benefits precluded plaintiff from filing a wrongful death action.
440.10 Liability for compensation. —
(1) Every employer coming within the provisions of this chapter, including any brought within the chapter by waiver of exclusion or of exemption, shall be liable for and shall secure the payment to his employees, or any physician or surgeon proving medical services under the provisions of s. 440.13, of the compensation payable under ss. 440.13, 440.15, and 440.16.
440.11 Exclusiveness of liability. —
(1) The liability of an employer prescribed in s. 440.10 shall be exclusive and in place of all other liability of such employer to any third party tort-feasor and to the employee, the legal representative thereof, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death, except that if an employer fails to secure payment of compensation as required by this chapter, an injured employee, or the legal representative thereof in case death results from the injury, may elect to claim compensation under this chapter or to maintain an action at law or in admiralty for damages on account of such injury or death.
The jury returned special interrogatory verdicts in which it found that during the evening in question the deceased was an employee of Knight-Ridder Newspapers, Inc. and was, at the time of his death, engaged in activities within the course and scope of his employment. The effect of the verdict was a determination that defendant had established the affirmative defense of workers' compensation liability and was not liable for further damages.
Plaintiff filed a Motion for New Trial. Although the court had originally denied plaintiff's motion in limine on the question of workers' compensation payments, it now decided that it had erred in permitting comment during counsel's argument on that subject. The court ruled:
6. This Court also awards a new trial as it is the opinion of this Court, based upon the disclosures in the record, that there was no evidence presented by the defendants as to who sought to initiate the claim for workmen's compensation benefits allegedly received by the decedent's relatives. No evidence was presented by the defendants in this regard. There is no evidence in this record as to who initiated the request for workmen's compensation benefits after the decedent was killed. While counsel for the defendants argued benefits were properly requested and lawfully paid, there is no evidence in this record of this fact. Counsel for the defendants argued to this Court, outside of the presence of the jury, that the decedent's brother made the request for workmen's compensation benefits. Assuming there was evidence of this (of which there is none), this request would be insufficient. See: Bec Construction Corporation v. Gonzalez, 383 So.2d 1093 (Fla.App.1st 1980). In the instant cause the decedent's brother was not the personal representative for the estate of the deceased. Whether or not workmen's compensation benefits were properly obtained or were lawfully obtained was kept from the jury.
7. This Court also grants the motion for new trial on the ground that this Court improperly allowed reference to collateral source to be made to the jury. The trial testimony reflects that counsel for the plaintiff agreed only that certain bills "have been paid." (T. 110). In closing argument, counsel for the defendants argued over the plaintiff's objection overruled by this Court (T. 177, 178), that the bills were paid by the workmen's compensation carrier. The argument advanced by counsel for the defendants was predicated on facts not in evidence for which a new trial be and the same is hereby granted.
8. In view of the above findings, it is this Court's opinion that the jury has been deceived as to the force and credibility of the evidence and has been influenced by considerations outside the record. Wackenhut Corp. v. Canty [ 359 So.2d 430 (Fla.App.)], supra, and Cloud v. Fallis [ 110 So.2d 669 (Fla.)], supra.
We find no support for appellant's argument that appellee Sosa had admitted the payment of compensation. Although counsel for appellee Sosa conceded that medical bills had been paid, and thereby relieved Knight-Ridder of the burden of introducing the bills, he did not stipulate that Knight-Ridder had paid worker's compensation benefits to appellee. We therefore agree with the trial court that it was improper for counsel to argue to the jury matters not supported by the evidence.
If the record supports any ground in a motion for new trial, the trial court's order granting a new trial must be affirmed. City of Hollywood v. Jarkesy, 343 So.2d 886 (Fla. 4th DCA 1977). In our view, the admission of argument of matters not in evidence supports the trial court's order. Finding no abuse of discretion in the granting of a new trial, Wackenhut Corporation v. Canty, 359 So.2d 430 (Fla. 1978); Cloud v. Fallis, 110 So.2d 669 (Fla. 1959), we affirm the trial court.
ON REHEARING
We reverse the order granting a new trial, with instructions to reinstate the final judgment theretofore entered in accordance with the jury's verdict, upon the reasoning contained in Judge Barkdull's original opinion set forth above.
Reversed and remanded, with directions. Judges BARKDULL and SCHWARTZ concur in the above.
BASKIN, J., adheres to her original opinion.
I respectfully dissent.
At trial, the question of workmen's compensation benefits arose with the defendant newspaper arguing that because it had paid out workmen's compensation benefits to the plaintiff a wrongful death action was thereby improper and could not be instituted. Pursuant to special interrogatory verdict forms, the jury found that the deceased ". . . was an employee of Knight-Ridder Newspapers, Inc." The jury also found that the deceased ". . . at the time of his death was engaged in activities within the course and scope of his employment with . . ." the defendant newspaper. The plaintiff's subsequent motion for a new trial was granted. This appeal ensued. I would reverse.
It read, in part, as follows:
"5. During the course of the litigation this Court rules there existed questions of fact as to the decedent's status at the time of his death and concluded that the jury should determine the ultimate issue. In making this ruling that the jury should determine the ultimate issue, this Court believes it was the Court's responsibility to interpret the contract between the minor plaintiff and his employer. This, the Court did not do. There was no issue in this case concerning the fact that the minor plaintiff was an employee for The Miami Herald when the minor plaintiff was delivering newspapers. At the time of the incident sued upon, the minor plaintiff was not within the sphere of the duties contained within the contract. This Court believes it was the Court's responsibility to make that interpretation of the contract and to so inform the jury pursuant to a proper jury instruction, which this Court did not do. Since counsel for the defendants argued to the jury in closing argument the effect of the contract and its significance to the relationship of the parties, the Plaintiff's Motion for New Trial be and the same is hereby granted."
The trial court abused its discretion in setting aside the verdict on the grounds that: (1) Confusion was created due to the trial court's failure to discuss with the jury the effect of the employment agreement between the deceased and the newspaper, and (2) It was improper to allow argument concerning workmen's compensation payments made to the plaintiff. With regard to the employment agreement, the record demonstrates that the plaintiff never made a request that it be interpreted by the court. The plaintiff's position throughout was that, whatever effect the agreement had on the determination of whether the decedent had an employee status or an independent contractor status, or some third argument, it was submissible to the jury. The defendant's counsel made only one comment concerning the agreement, which was insufficient under the circumstances to support an order for a new trial. Also, in rebuttal, the plaintiff's counsel clearly presented the plaintiff's position concerning the effects of the contract. Next, with regard to the question of workmen's compensation benefits, the defendant's counsel did not state that such benefits were property requested and lawfully paid, but only that such benefits were paid and that the payment for certain bills and expenses came from that source. The trial court was incorrect in stating that there was no evidence to support the claim of the defendant's counsel, in closing argument, that certain bills and expenses were paid by workmen's compensation. In fact, the plaintiff admitted that workmen's compensation payments were made and received.
". . . I think this boy was clearly an employee. His employment agreement is in the record and it even says it specifically."
". . . I am not doing my job as a lawyer by telling you there were benefits received and workmen's compensation. They paid the bills and there were benefits.
Now, the reason that came into the case is because, and that is the same reason — the reason that that testimony was received was because if you are injured on the job and you are an employee, then you get a certain statutory workmen's compensation award. . . ."
"MR. GINSBERG: I don't think there is a dispute that they offered workmen's compensation benefits and it was received. And workmen's compensation benefits were in fact received."
A new trial should not be granted in absence of a finding that the verdict is against the manifest weight of the evidence (which finding was not made in the instant case), unless the jury has been deceived as to the force and credibility of the evidence or has been influenced by considerations outside the record which affect substantial rights of the moving party to the extent that a fair trial was not had. Springfield Life Insurance Company v. Edwards, 375 So.2d 1120 (Fla. 3d DCA 1979); Wackenhut Corporation v. Canty, 359 So.2d 430 (Fla. 1978); Laskey v. Smith, 239 So.2d 13 (Fla. 1970); Hodge v. Jacksonville Terminal Company, 234 So.2d 645 (Fla. 1970); North Dade Imported Motors, Inc. v. Brundage Motors, Inc., 221 So.2d 170 (Fla. 1st DCA 1969); Warner v. Goding, 91 Fla. 260, 107 So. 406 (1926). Counsel for plaintiff cannot urge error in failing to give certain instructions if they were not requested. Atlantic Coast Development Corporation v. Napoleon Steel Contractors, Inc., 385 So.2d 676 (Fla. 3d DCA 1980); Dixie Farms, Inc. v. Timmons, 323 So.2d 637 (Fla. 3d DCA 1975); Frankowitz v. Beck, 257 So.2d 918 (Fla. 3d DCA 1972); Rule 1.470(b), Fla.R.Civ.P. Counsel for plaintiff cannot now claim error in the special interrogatory verdict submitted to and answered by the jury, because same was prepared by counsel for the plaintiff and any error thereby was induced. Walker v. Senn, 376 So.2d 410 (Fla. 1st DCA 1979); Behar v. Southeast Banks Trust Company, N.A., 374 So.2d 572 (Fla. 3d DCA 1979); Public Health Trust of Dade County v. O'Neal, 348 So.2d 377 (Fla. 3d DCA 1977). There is no error in defense counsel referring to admissions made in open court.
Therefore, for the reasons above stated, I would reverse the order granting a new trial with directions to reinstate the jury verdict and enter an appropriate judgment thereon.