Dunn v. Campbell
| Decision Date | 01 July 1964 |
| Docket Number | No. 4976,4976 |
| Citation | 166 So.2d 217 |
| Parties | Jean DUNN, Petitioner, v. Elmer P. CAMPBELL, Jr., Respondent. |
| Court | Florida District Court of Appeals |
John A. Lloyd, Jr., of Masterson, Lloyd & Rogers, St. Petersburg, for petitioner.
Joseph W. Bradham, Jr., of Ramseur, Bradham & Skipper, St. Petersburg, for respondent.
This is before us on petition for writ of certiorari directed to an interlocutory order of the trial court denying plaintiff's motion to amend her complaint in an action at law. The motion, seeking to add three additional counts to the original complaint, was filed only four days before the scheduled pre-trial conference and hearing on defendant's motion for summary judgment. The question is whether or not the trial court acted contrary to the dictates of justice and the essential requirements of law. Edwards v. Knight, 1932,104 Fla. 16, 139 So. 582, 143 So. 441.
Plaintiff's decedent expired following a sterilization operation which was performed in the respondent-medical doctor's office. The surgery consisted of the removal of a portion of the spermatic cord. Internal bleeding in the scrotum and consequent hematoma and infection resulted in the patient's death. The surviving spouse filed a wrongful death action charging the defendant with malpractice under a single count of negligence. The defendant answered, denying the alleged general and specific acts of negligence and asserting several affirmative defenses including assumption of risk.
Interrogatories and defendant's deposition revealed that the deceased voluntarily submitted to office surgery after being informed of the degree of danger involved. The plaintiff and the deceased husband each signed the requisite consent form prior to the operation. The defendant stated on interrogatories that the deceased was given the choice of hispital or office surgery for an identical surgical fee, but 'He [the patient] stated that he was unable to provide the additional $200.00 for hospitalization, and requested an appointment for office surgery.' The defendant stated that he explained to the deceased that one of the advantages of hospital surgery was the control of bleeding.
Plaintiff subsequently produced a deposition designed to show that it would be unlikely that $200.00 hospital charges would be incurred. Thereupon the plaintiff moved for leave to amend her complaint and tendered three new counts. The proposed additional counts purported to raise issues of assault and battery, res ipsa loquitur, and mis-information as to hospital charges. The order denying the motion for leave to amend is the subject of this petition.
Plaintiff asserts that the law favors liberal allowance of amendments to pleadings citing Rule 1.15(e), R.C.P. 30 F.S.A. 1 ; Hart Properties, Inc. v. Slack, Fla.App.1962, 145 So.2d 285, reversed on another point, Fla.1963, 159 So.2d 236; Raggs v. Gouse, Fla.App.1963, 156 So.2d 882; Lee v. Soverign Camp. W.O.W., 1934, 113 Fla. 472, 152 So. 17. In the case of E. O. Painter Fertilizer Company v. Foss, 1932, 107 Fla. 464, 469, 145 So. 253, 255, the Supreme Court said inter alia:
'* * * the right to amend is substantial, and a denial of such right has been held to warrant the holding, in extreme cases, that such denial amounts to an illegal departure from the essential requirements of the law. * * *
'* * * judicial discretion is more likely to be abused in denying a right to amend than in granting it. * * *'
Defendant on the other hand argues that the minute and indefinite facts presented by plaintiff to the trial court concerning the conjectural cost of hospitalization are not sufficient to create an abuse of discretion to warrant issuance of the common law writ sought. Conceding that the courts favor that the right must not be abused. In short, that the right mustnot be abused. In short, the 'liberality' gradually diminishes as the trial progresses. See 25 Fla.Jur. Pleadings § 102. Warfield v. Drawdy, Fla.1949, 41 So.2d 877.
The Warfield case, supra, states:
'While we are committed to the propositions that liberality will be indulged in the amendment of pleadings, Watkins v. Watkins, 123 Fla. 267, 166 So. 577, and a broad discretion will be accorded the trial judges in that respect, Mills Rock Company v. Mills, 137 Fla. 607, 188 So. 210, such amendments are not allowable if they 'would change the issue, or introduce new issues, or materially vary the grounds of relief * * *,' Griffin v. Societe Anonyme la Floridienne J. Buttgenbach & Co., 53 Fla. 801, 44 So. 342, 351.
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...v. Clark Equipment Company, 382 So.2d 878 (Fla. 3d DCA 1980); Ruden v. Medalie, 294 So.2d 403 (Fla. 3d DCA 1974); Dunn v. Campbell, 166 So.2d 217 (Fla. 2d DCA 1964). We find no error in refusing to submit the question of punitive damages to the jury, as there was no sufficient basis in the ......
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U.S. v. State, 65-147
...liberal in permitting the amendment of pleadings, this 'liberality' gradually diminishes as the case progresses. Dunn v. Campbell, Fla.App.1964, 166 So.2d 217. In line with this principle there are a vast number of federal cases construing the effect of Rule 15, Federal Rules of Civil Proce......
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...initially sought, or where a case has progressed to a point that the liberality ordinarily to be indulged has diminished. Dunn v. Campbell, Fla.App.1964, 166 So.2d 217; United States v. State, Fla.App.1965, 179 So.2d 890; Triax, Inc. v. City of Treasure Island, Fla.App.1968, 208 So.2d 669. ......
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