Opinion
No. 90-1420.
September 10, 1991.
Appeal from the Circuit Court, Dade County, Celeste Hardee Muir, J.
Kelly, Black, Black, Byrne, Beasley, Bales, and Lauri Waldman Ross, Miami, Dan Wheeler, Coral Gables, Robert C. Maland, Miami, George Combaluzier, Coral Gables, for appellants.
Shutts Bowen, Don A. Lynn and Jonathan Cohen, Miami, for appellee.
Before SCHWARTZ, C.J., and JORGENSON and GODERICH, JJ.
The plaintiffs, Manuel and Sylvia M. de Andreu [hereinafter referred to as the Andreus], appeal from a final judgment entered in favor of Citicorp Savings of Florida [hereinafter referred to as Citicorp or the bank]. We reverse and remand.
The Andreus, residents of Guatemala, maintained a safe deposit box at Citicorp in which they kept jewelry and coins. They sued Citicorp for negligence and breach of contract, claiming that the contents of the safe deposit box — which they valued at $70,000 — were stolen between September 19, 1986 and December 2, 1986. There was no sign of forced entry; neither of the duplicate keys was lost or stolen. They produced a time-stamped vault entry card that bore a stamp reading September 29, 1986, when they claim they were out of the country.
The Andreus theorized that a security guard somehow palmed a key, duplicated it, and raided the box. Citicorp's defense at trial was that such a theft was "inconceivable", and that the Andreus themselves must have removed the coins from the safe deposit box. The Andreus moved to contradict Citibank's testimony with evidence of a similar theft of another person's safe deposit box; however, the trial court denied the motion. The jury returned a verdict for the bank. The Andreus appealed, contending that the trial court erred in excluding evidence of the other similar occurrence at the bank. We agree.
Before the Andreus discovered their alleged loss, another Citicorp customer, Robert Flatow, claimed that the contents of his safe deposit box had been stolen. Mr. Flatow and his mother, Florence Silverstein, were co-tenants of a safe deposit at the same Citicorp branch as the Andreus. Mr. Flatow claimed that on October 1, 1986, he discovered that $8,250 in cash was missing from his safe deposit box. He further claimed that remarks made among bank employees at the time he reported his loss suggested an even earlier similar incident. Finally, Mr. Flatow claimed that his time stamped vault entry card bore a stamp reading September 29, 1986, when neither he nor his mother was at the bank.
This court has held that a party may introduce evidence of other incidents to contradict a witness' testimony if the proffered evidence relates to a similar incident occurring under substantially similar circumstances. Carnival Cruise Lines, Inc. v. Rodriguez, 505 So.2d 550 (Fla. 3d DCA 1987), rev. dismissed, 520 So.2d 586 (Fla. 1988). In the case at bar, when the Andreus offered the theory that a bank employee stole the contents of the safe deposit box, Citicorp's expert witness testified that such a thing was "inconceivable." To contradict his testimony, the Andreus moved to introduce Mr. Flatow's deposition — evidence of a similar incident allegedly occurring under substantially similar circumstances.
A videotaped deposition had been taken of Mr. Flatow, who was deceased at the time of trial.
In Perret v. Seaboard Coast Line R.R. Co., 299 So.2d 590 (Fla. 1974), the Florida Supreme Court held that the trial court had improperly excluded evidence of an earlier accident at the same place and under substantially similar circumstances. Citing a dissenting opinion in an earlier case, the Supreme Court held that "[i]t was properly within the province of the jury to consider this other accident and it became material in determining whether the appellee was at fault." Chambers v. Loftin, 67 So.2d 220, 222 (Fla. 1953).
In the case at bar, evidence of Mr. Flatow's alleged loss would have contradicted Citicorp's allegations that the Andreus' loss was an impossibility and an obvious fraud. That evidence was necessary to establish that Citicorp knew of another similar theft in the same location. Including the evidence might have strengthened the jury's perception of the Andreus' credibility sufficiently to change the verdict. The exclusion of such a "damning piece of evidence" constitutes a reversible error. Wynne v. Exercise Centers of Southeast Florida, Inc., 548 So.2d 704, 705 (Fla. 3d DCA 1989). For the foregoing reasons, we find that the trial court erred in excluding the proffered evidence of Mr. Flatow's allegations, and we hereby reverse and remand this cause for a new trial.
Finding our decision on this issue to be dispositive of our resolution of the case, we decline to address the other issues raised on appeal.
Reversed and remanded.
SCHWARTZ, C.J., and GODERICH, J., concur.
I respectfully dissent.
In my view, Mr. Flatow's bare allegations of a loss of cash from his safe deposit box and his speculations as to how that loss occurred are not relevant to the Andreus' claim that items disappeared from their safe deposit box. The proffered evidence does not tend to "prove or disprove a material fact." Section 90.401, Fla. Stat. (1989). Although the court characterizes the proffered evidence as "evidence of a similar theft," the record reveals that the Andreus sought to admit mere opinion, speculation, and unproven allegations. The proffered evidence consists of a videotaped deposition in which Mr. Flatow asserted that sometime between September 23 and October 1, 1986, $8,500 in cash disappeared from his safe deposit box at the same Citibank branch where the Andreus kept their valuables. The cash represented his gambling "stake" and winnings from trips to Las Vegas. Mr. Flatow admitted that he was not able to explain the disappearance of the cash. He theorized, however, that "I believe it could have been the guard, or that it was some employee that had access into that vault that either made a duplicate key or had somebody making duplicates out of — it could still be going on — out of many keys until opportunity showed up to use — or to have somebody working with the person inside." With this testimony, the Andreus sought to bootstrap their own theory of the case, which was that a bank guard had "palmed" their key and copied it. This court, by reversing the trial court's exclusion of Mr. Flatow's testimony, treats one man's speculation regarding an unproven allegation as evidence of a proven event.
Mr. Flatow and his mother, co-tenants of the safe deposit box, sued Citibank for the alleged loss. This court has not been apprised of the outcome of that litigation.
The court relies on Carnival Cruise Lines v. Rodriguez, 505 So.2d 550 (Fla. 3d DCA 1987), rev. dismissed, 520 So.2d 586 (Fla. 1988), which holds that a party may introduce evidence of other incidents to contradict a witness' testimony when the proffered evidence relates to a similar incident occurring under substantially similar circumstances. I believe that the court's reliance on Carnival is misplaced. In Carnival, the plaintiff, a seaman who had contracted toxoplasmosis, convinced the trial court to admit a ship's log to show that other employees on his ship had complained of symptoms consistent with toxoplasmosis. This court held that the admission of such "similar incident" evidence constituted an abuse of discretion as the log was not relevant to the plaintiff's claim. The log contained no specific diagnosis of toxoplasmosis and was deemed irrelevant and highly prejudicial. Carnival, 505 So.2d at 552. Likewise, in this case, the evidence is not relevant as it does not tend to prove or disprove that the bank was negligent, that the guard surreptitiously copied customers' keys, or that the Andreus suffered a loss. The only fact that the proffered evidence tends to prove is that Mr. Flatow and the Andreus shared the same theories about the disappearance of their valuables.
We have recognized that "[e]vidence of other incidents or accidents, even when admitted for impeachment purposes, tends to inject collateral issues and to divert the jury's attention from the matter directly in controversy." Carnival, 505 So.2d at 552. Even if Mr. Flatow's testimony had any probative value, it was far outweighed by the prejudicial effect it would have had on the jury. His unproven allegations of loss and his speculative theory that a bank guard copied his key would make an indelible impression on the jurors' minds.
Although evidence of similar incidents may be admitted for reasons other than proving negligence or culpability, the cases that so hold do not involve mysterious disappearances but involve actual events that were observed, and that had tangible results. See, e.g., Lawrence v. Florida East Coast Ry. Co., 346 So.2d 1012 (Fla. 1977) (evidence of similar railroad crossing malfunctions admissible to show notice of defective system and to impeach witness' claim that system invulnerable); Perret v. Seaboard Coast Line R.R. Co., 299 So.2d 590 (Fla. 1974) (evidence of prior collision between train and automobile at same crossing, two weeks earlier, at same time of day and under similar weather conditions, admissible to show notice of dangerous conditions); Lomillo v. Howard Johnsons Co., 471 So.2d 1296 (Fla. 3d DCA 1985) (evidence of similar crimes in vicinity of attack admissible to demonstrate foreseeability of attack). See generally Ehrhardt, Florida Evidence § 411.2 (2d Ed. 1984).
I would affirm the judgment below.