Opinion
No. 72-72.
August 8, 1972. Rehearing Denied September 18, 1972.
Appeal from the Circuit Court for Dade County, George E. Schulz, J.
Adams, George Wood, Jeanne Heyward, Miami, for appellant.
Nachwalter Falk, Miami, for appellee.
Before BARKDULL, C.J., and PEARSON and HENDRY, JJ.
Defendant appeals from a judgment entered pursuant to a jury verdict for the plaintiff in the sum of $12,500.00 for personal injuries sustained as a result of a fall in defendant's parking lot.
The first point on appeal as stated by defendant is that: "the court erred in failing to grant defendant's motions for directed verdict and post trial motions and entering a final judgment in favor of plaintiff where plaintiff failed to prove that she was a business invitee when she fell in defendant's parking lot and failed to prove that defendant breached any duty owed to her proximately causing her injury". Defendant's remaining point is "that the court erred in allowing plaintiff's counsel to voir dire the jury on the subject of insurance and denying defendant's motions for mistrial and new trial . . ."
We have considered each of the contentions in light of the record on appeal, briefs and arguments of counsel and have found them to be without substantial merit. Smith v. Montgomery Ward Co., Fla. App. 1970, 232 So.2d 195; Stecher v. Pomeroy, Fla. 1971, 253 So.2d 421.
No prejudicial or reversible error having been made to appear, the judgment appealed is affirmed.
Affirmed.
I respectfully dissent from the majority opinion in this case. Prior to the trial of this cause, the parties had secured an agreed order from the court, which reads as follows:
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"* * * that the Defendant, TRAVELERS INSURANCE COMPANY, shall have a separate trial as to liability and damages and that the matter of insurance coverage shall not be disclosed to the jury during the trial of this cause."
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It is apparent that notwithstanding this order the trial judge permitted the matter of insurance to be brought to the attention of the jury and, in fact, tried the insurance company and its witnesses. I think it is apparent from the record it had a prejudicial effect on the jury and I would reverse and grant a new trial.