Dixie Farms, Inc. v. Timmons, s. 74--1761
| Decision Date | 02 December 1975 |
| Docket Number | Nos. 74--1761,75--61,75--73,s. 74--1761 |
| Citation | 323 So.2d 637 |
| Parties | DIXIE FARMS, INC., Appellant, v. Bobbie Jean TIMMONS et al., Appellees. Richard B. SHAFFER and State Farm Mutual Automobile Insurance Company, Appellants, v. Bobbie Jean TIMMONS, Appellee. |
| Court | Florida District Court of Appeals |
Weinstein & Bavly and Arthur J. Morburger, Miami, for Dixie Farms, inc.
Talburt, Kubicki & Bradley, Jeanne Heyward, Miami, for Shaffer and State Farm.
Horton, Perse & Ginsberg, Welsh & Carroll, Miami, for Bobbie Jean Timmons.
Before BARKDULL, C.J., and PEARSON and HAVERFIELD, JJ.
These appeals arise out of the same automobile collision. The appellee in each case is the plaintiff, Bobbie Jean Timmons who received a final judgment on a jury verdict against the defendants Dixie Farms, Inc., and Richard B. Shaffer. Plaintiff Timmons was injured when a car driven by Shaffer struck her house after having collided in an intersection with another vehicle. Dixie Farms, Inc., was the lessee-operator, through its driver Fell, of a truck which had been improperly parked so that it obscured a stop sign. The evidence viewed most favorably to the judgment shows that Fell motioned Shaffer into the intersection and that Shaffer, relying upon Fell, improperly proceeded into the intersection and was struck by the second automobile.
Dixie Farms, Inc., as appellant, vigorously argues a claimed error by the trial court in allowing amendment to the complaint at the conclusing of the plaintiff's evidence to conform to the evidence presented. This procedure is authorized by RCP 1.190. Such an amendment is one that calls for the exercise of a trial court's careful discretion in order that the defendant may not be surprised by the introduction of issues by evidence for which he has not been able to prepare. See Surfside Hotel, Inc. v. W. E. Moorehead Co., 1942,149 Fla. 397, 5 So.2d 857, and Penn Cork and Closures, Inc. v. Piggyback Shippers Association of Florida, Inc., Fla.App.1973, 281 So.2d 46. We have carefully reviewed the record in the light of the contention of Dixie Farms that it was prejudiced by the ruling of the trial judge and we think that the record supports the action of the trial judge in that it affirmatively appears that the defendant Dixie Farms, Inc., was not surprised by proof that its employee was the person who waived Shaffer into the intersection. Therefore, we hold that no error has been shown under this point.
The only other point presented by Dixie Farms which we think merits discussion is its contention that the trial court committed reversible error when it failed to give any instruction on the law of respondeat superior as it applied to Dixie Farms' liability for the acts of its driver. This circumstance arose from the fact that the court at the...
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