Hart Properties, Inc. v. Slack, No. 61-531

• Court: Court of Appeal of Florida (US)
• Writing for the Court: Before PEARSON, TILLMAN; PEARSON, TILLMAN; BARKDULL
• Citation: 145 So.2d 285
• Decision Date: 09 October 1962
• Docket Number: No. 61-531
• Parties: HART PROPERTIES, INC., a Florida corporation, Appellant, v. John SLACK, a minor, by and through his mother and next friend, Estelle Slack and Estelle Slack, individually, Appellees.

Page 285

145 So.2d 285 HART PROPERTIES, INC., a Florida corporation, Appellant,
v.
John SLACK, a minor, by and through his mother and next friend, Estelle Slack and Estelle Slack, individually, Appellees. No. 61-531. District Court of Appeal of Florida, Third District. Oct. 9, 1962.
Rehearing Denied Oct. 25, 1962.

Page 286

Papy, Talburt & Carruthers, Miami, for appellant.

Truett & Watkins, Miami, for appellees.

Before PEARSON, TILLMAN, C. J., and BARKDULL and HENDRY, JJ.

PEARSON, TILLMAN, Chief Judge.

John Slack, the minor plaintiff, went with his older brother, Steve, to the Castaways Motel [owned and operated by the defendant] to go swimming. During the course of the day, plaintiff was injured when he stepped back from the side of the pool and fell into the hole left uncovered when the doors leading down to the pump room were open. Neither boy was a guest at the motel nor did either pay any money for the privilege of using the pool. By arrangement with the manager of the motel pool, Steve received the privilege of the use of the pool for himself and guests in return for his participation in water shows put on by the pool manager. John, the plaintiff, had been to the pool some five or six times prior to the accident and his presence had been cleared with the pool manager. John had also been used in one water show to demonstrate the value of swimming instructions which were sold by the pool manager.

The issues of negligence and contributory negligence were framed and tried by the jury. The plaintiff received a substantial award. This appeal is by the defendant from the judgment based upon the jury's verdict. Having considered each point raised by the appellant, we affirm.

The first point raised urges that the defendant was entitled to a summary judgment because when the motion was heard the complaint alleged that the minor plaintiff was a licensee. The answer admitted plaintiff's status, and the exhibits on file showed that the condition causing plaintiff's injury was open and obvious. We decline to reverse the trial judge for his refusal to grant a summary judgment because genuine issues of material fact existed upon the record at the time the motion was heard. Even though plaintiff had described his status as licensee, upon motion for summary judgment the issues are made by the pleadings, the depositions and admissions on file. Where the facts show an issue not framed in the pleadings, the trial judge will not be reversed for failing to grant a summary judgment, even though his failure to enter a directed verdict might be error if the same situation existed at the close of plaintiff's case.

Appellant's second point is directed to claimed error of the court in a ruling at the close of plaintiff's case which allowed plaintiff to amend his complaint. The complaint, as amended before trial, alleged that at the time of his injury the minor plaintiff was a licensee upon the premises of the defendant. This conclusion of law was admitted by the answer. Immediately

Page 287

prior to the date set for trial, the plaintiff served and filed the following pleading entitled 'Amendment to Amended Complaint':

'Plaintiffs, JOHN SLACK, a minor, by his mother and next friend, ESTELLE SLACK and ESTELLE SLACK, individually, by their undersigned attorneys, move the Court to allow the Amended Complaint to be further amended by adding the following:

'5. That on the 19th day of July, 1959, at approximately 4:00 P.M., plaintiff, JOHN SLACK, was a licensee or invitee upon the premises of the defendant.'

The pleading appears, from its plain language, to have been a motion for leave to amend the complaint under Rule 1.15(a), Florida Rules of Civil Procedure, 30 F.S.A.

Defendant promptly filed a 'Motion to Strike Amendment to Amended Complaint'. The subject was argued before the judge just prior to the voir dire examination of the jury. The trial judge in effect granted plaintiff's motion by allowing him to go to trial and prove either that he was a licensee or an invitee. Rule 1.8(g), Florida Rules of Civil Procedure, 30 F.S.A., permits alternative pleadings and the factual situation of this case is a classic example of the purpose of the rule. However, the question remains as to whether the amendment establishing an alternative statement in the complaint was error because of the time at which it was allowed.

The appellant urges that it was...