That could be it and I was misinformed about the CFI aspect. Can you give me a citation so I can try to dig it up? Thanks!
The one I came across is Schnedl v. Rich, 137 So.2d 1, a 1962 case out of Florida. It's an appeal in a wrongful death case, mostly about the damages awarded.
The asleep part is that the plaintiff's lawyer argued that the defendant's lawyer made an improper argument. that the deceased, who may have been asleep in the back seat, was part of the decision that lead to the crash.
It's not much. Here's part of the case that deals with the sleeping passenger issue.
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The plaintiff's husband was killed in an airplane crash in which the defendant's decedent, Russell E. Rich, owner and pilot of the airplane, was also killed. The two men, with one other, were flying from Lantana Airport to Melbourne to salvage equipment from an airplane which plaintiff's decedent had crashed earlier the same day. The third occupant, Thomas A. Stokes, Jr., was the only survivor of the crash with which we are here concerned. All three men were pilots and had undertaken the trip after weather reports indicated good visibility with scattered showers. A thick cloud was encountered near Fort Pierce and, after some discussion between Russell Rich and Thomas Stokes, the flight proceeded under the cloud rather than around it and over the ocean. They ran into heavy rain, lost visibility and crashed.
[snip]
It is urged on appeal that the amount of the verdict was less than what would otherwise have been awarded had counsel for the defendant not made improper and prejudicial arguments on non-existent issues. At the trial Thomas Stokes, the sole survivor, testified in part as follows:
"Q. Just before this from the time you took off at Valkaria had Mr. Schnedl said anything from the back seat?
"A. No.
"Q. Do you know whether he was asleep or awake?
"A. I couldn't say, I don't know."
Plaintiff's decedent was, of course, in the airplane although he apparently did not participate actively in the conference between Rich and Stokes as to what course should be followed with reference to the cloud formation. In addressing the jury, counsel for the defendant argued as follows:
"Did Mr. Rich fly immediately down? No, he didn't. He had a consultation with Mr. Stokes. Mr. Rich and Mr. Stokes discussed it. Mr. Rich asked the question, 'Should we fly out over the ocean around it or should we follow the Turnpike,' and Mr. Stokes replied that he felt that they should follow the Turnpike, and I think that his reasoning as stated was in the event of difficulty they could make a landing, whereas if they were over the ocean in a land plane of course they couldn't.
"Under the circumstances did Mr. Stokes raise any question about their ability to safely proceed under the cloud? 'No.'
"Did Mr. Schnedl raise any question about their ability to safely proceed under the cloud? 'No.' * * * (my emphasis)
"I don't know how anyone in this Courtroom whether he be expert or not, could reasonably pass judgment on a decision made by those three men at that time." (my emphasis)
The appellant's first point for reversal is that defense counsel, in so addressing the jury, in effect argued assumption of risk and contributory negligence which was highly improper and prejudicial to the plaintiff. The point is not well taken. The question of whether the defendant's decedent was negligent was as yet undetermined. The protested argument was predicated upon the "reasonable man" theory in a defensive explanation of an allegedly negligent act under a pleading of general denial of liability. The argument thus was within the orbit of the pleadings and the evidence. Moreover the jury found for the plaintiff on the issue of liability, indicating that any argument suggesting contributory negligence or assumption of risk was in fact rejected.
Counsel in addressing the jury should, of course, confine his arguments fairly within the range of the issues and the evidence with logical deductions therefrom; but he is accorded wide latitude. Alford v. Barnett National Bank of Jacksonville, 1939, 137 Fla. 564, 188 So. 322; Watkins v. Sims, 1921, 81 Fla. 730, 88 So. 764. There is nothing from which to conclude that the doctrine of comparative negligence entered into the verdict in the instant case. The jury was not charged with the doctrine, nor was it discussed at the trial; and any conclusion that the jury was influenced by nonevidentiary matters or inapplicable principles of law would be mere supposition and conjecture.
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