Nassif v. Southern Wholesale, Inc.
Nassif v. Southern Wholesale, Inc.
Concurring Opinion
concurring.
I concur for the following reasons. Facts or circumstances connected in any way with the matter in issue or from which any inference of the disputed fact can be reasonably drawn should not be excluded from the consideration of the jury. Pettiford v. Mayo,
In the case sub judice, the excluded evidence was calculated to enable the jury to properly understand the conduct of the parties and to weigh the reasonableness of their contentions. The circumstances surrounding the parties’ action regarding the leasing, possession and use of the 1978 Cadillac are so connected to the leasing, possession and use of the 1980 Cadillac, which was included in the severance agreement, that the jury should have been permitted to consider this evidence in arriving at its determination of the truth of the matter in dispute. Under the circumstances, I think the excluded evidence was relevant and material as bearing upon the credibility of the parties’ testimony and the reasonableness of their contentions as to the terms of the severance pay agreement.
Opinion of the Court
Plaintiff first assigns error to the trial court’s exclusion of certain evidence. The facts necessary to an understanding of this assignment of error are as follows:
Plaintiff was employed as general manager of defendant, a wholesale beer distributor. In March, 1981, plaintiffs employment by defendant was terminated. In his complaint, plaintiff alleged that defendant, acting through its president, Bob Beaty, agreed to
In its answer defendant admitted that it agreed to pay plaintiff $500 a week severance pay, but denied that the agreed upon period was twelve weeks, contending instead that it agreed to provide plaintiff with this sum for two months. Similarly, defendant asserted that plaintiff was told he might retain possession of the automobile for two months; defendant denied plaintiff s allegation that it agreed to give him title to the car. The evidence tended to show that the fair market value of the automobile in question was $12,000 at the time of the alleged agreement.
At trial plaintiff sought unsuccessfully to introduce evidence tending to show the following: In March, 1978, plaintiff had a birthday party, which was attended by Bob Beaty, defendant’s president. At this party Mr. Beaty presented defendant with the keys to a 1978 Sedan DeVille. The following Monday plaintiff encountered Mr. Beaty and thanked him again for the gift of the car. Plaintiff testified on voir dire that Mr. Beaty responded as follows: “Well, you understand it’s leased. . . . Use it as a company car and personal car and that after a couple of years, we’ll— you’ll have to pay $1.00 or $10.00, nominal fee and the car will be yours. You can give it to your wife to drive and we’ll give you another company car.” Plaintiff testified that, at Mr. Beaty’s suggestion, he later exchanged this car for the 1980 diesel Fleetwood Cadillac at issue in the present action. According to plaintiff, Mr. Beaty indicated that the gas-driven 1978 Sedan DeVille “was using a lot of gas,” and said, “If you get a Diesel and give it to your wife in a couple years. . . . The car will last you a long time and will operate a lot cheaper.” Like the 1978 Sedan DeVille, the 1980 Fleetwood was leased by defendant. At trial Judge Bur
Plaintiffs testimony before the jury was that he met with Mr. Beaty on 13 March 1981, at which time he was asked to resign. Plaintiff testified that he and Mr. Beaty discussed the terms of plaintiffs severance pay in some detail, and that, at the end of the conversation, Mr. Beaty said, “Of course, the car”; plaintiff responded by saying, “That’s the second time you give me the car.”
Plaintiff contends that the excluded evidence was relevant to his claim for the 1980 Fleetwood Cadillac because it tended to render more credible his contentions as to the disputed terms of the oral agreement between plaintiff and defendant. We agree. The jury’s determination of the disputed terms of the oral agreement hinged on the credibility of plaintiff and Mr. Beaty. The evidence plaintiff was allowed to present to the jury tended to show that plaintiff and Mr. Beaty discussed at some length severance pay amounting to approximately $9,750, and that Mr. Beaty thereafter, without discussion and in an off-handed manner, agreed to include property having a fair market value of $12,000. We believe plaintiffs testimony in this regard is far more credible when considered in light of the excluded evidence that plaintiff had previously been assured by defendant that he would eventually be given title to the car. Because we believe the erroneous exclusion of this evidence may well have been prejudicial to plaintiff, we hold that plaintiff is entitled to a new trial.
New trial.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.