Henningsen v. Smith
| Decision Date | 21 April 1965 |
| Docket Number | No. 4165,4165 |
| Citation | 174 So.2d 85 |
| Parties | Herman B. HENNINGSEN, Appellant, v. James W. SMITH, Appellee. |
| Court | Florida District Court of Appeals |
John W. Boult, of Shackleford, Farrior, Stallings, Glos & Evans, Tampa, for appellant.
Alex Finch, of Finch & Mosley, Clearwater, for appellee.
Appellant, defendant in the trial court, appeals an adverse final judgment based on a jury verdict in an action for personal injuries resulting from an intersection collision between automobiles being operated by the plaintiff and defendant.
Appellant seeks review of three points: (1) Whether the trial court erred in receiving over defendant's objection the testimony of a witness for plaintiff whose name was not included on a witness list filed by plaintiff at the pretrial conference; (2) Whether the trial court's instruction of future loss of earnings and future earning capacity was a correct statement of the law; (3) Whether the trial court's instruction on defendant's liability for aggravation of a pre-existing ailment was a correct statement of the law.
As to the first point the record discloses that at the pretrial conference held February 20, 1963, attorneys for plaintiff filed with the trial judge a list of witnesses on which the name of Dr. John Lee did not appear. 1 Thereafter Dr. John Hagood, who was plaintiff's main treating physician referred plaintiff to Dr. Lee for examination. Dr. Lee examined plaintiff on March 3, 1963. Plaintiff called Dr. Lee as a witness at the trial on March 15, 1963, and defendant objected on the ground that Dr. Lee's name did not appear on the witness list filed by plaintiff's attorney at the pretrial conference.
Following defendant's objection there was a colloquy at the bench between the trial judge and the attorneys. Attorney for plaintiff stated to the judge that at the taking of a deposition in the case on February 26, 1963, attorney for plaintiff advised an associate of defendant's trial counsel that Dr. Lee was going to examine plaintiff, and that the deposition would so reflect. The deposition is not a part of the appeal record. Although plaintiff's attorney would have little basis for complaint if the trial judge under the authority of the holding in Rose v. Yuille, Fla.S.Ct.1956, 88 So.2d 318, and rejected Dr. Lee's testimony we are of the opinion that the record before us fails to demonstrate that it was an abuse of the broad discretionary power of the court for proper conduct of litigation to receiver Dr. Lee's testimony.
Points two and three raised by appellant involve objections to charges given by the trial judge. At the conclusion of the jury charge and before the jury commenced deliberation, the court invited the attorneys to dictate into the record any objections to the charges, as given. The objections then stated by attorney for appellant...
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Marks v. Delcastillo
...ground, but rather on the basis that there was no evidence in the record of the amount of the lost accumulations. 16 Henningsen v. Smith, 174 So.2d 85 (Fla.2d DCA 1965), and many similar cases are cited for the proposition that only the grounds of objection to jury charges asserted below ma......
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Wagner v. Nottingham Associates, 84-105
...3d DCA 1982), rev'd on other grounds, 428 So.2d 243 (Fla.1983); Schwab v. Tolley, 345 So.2d 747 (Fla. 4th DCA 1977); Henningsen v. Smith, 174 So.2d 85 (Fla. 2d DCA 1965). Nor, for roughly the same reasons, does the "fundamental error" exception to the preservation rule apply to this case. W......
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Walton v. Robert E. Haas Const. Corp., s. 70--586
...not find reversible error on this point inasmuch as the plaintiffs had a clear opportunity to object and did not do so. Henningsen v. Smith, Fla.App.1965, 174 So.2d 85; RCP 1.470(b), 30 Having examined the record in the light of the arguments submitted and having reached the conclusion that......
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Wackenhut Corp. v. Greene
...preserved this point for appeal. See Rule 1.470(b), RCP, 30 F.S.A. Sharpsteen v. Keesler, Fla.App.1965, 178 So.2d 623; Henningsen v. Smith, Fla.App.1965, 174 So.2d 85; and Karp v. Hodor, Fla.App.1964, 166 So.2d 597. Assuming arguendo that the point was properly preserved for consideration o......