Raggs v. Gouse, 3862

• Decision Date: 16 October 1963
• Docket Number: No. 3862,3862
• Parties: Leon RAGGS, Appellant, v. Melvin GOUSE, as Administrator of the Estate of Sara Louise Gouse, Deceased, Appellee.
• Court: Florida District Court of Appeals

Page 882

156 So.2d 882

Leon RAGGS, Appellant, v. Melvin GOUSE, as Administrator of the Estate of Sara Louise Gouse, Deceased, Appellee.

No. 3862.

District Court of Appeal of Florida, Second District.

Oct. 16, 1963.

Richard W. Reeves, of Allen, Dell, Frank & Trinkle, Tampa, for appellant.

T. Truett Ott, of Hardee, Ott & Hamilton, Tampa, for appellee.

SHANNON, Judge.

This is an appeal by the defendant-appellant from an adverse final judgment in a personal injury action brought by the plaintiff-appellee.

The plaintiff below was a passenger in the automobile which defendant was driving at the time of the accident, and her complaint alleged a passenger-for-hire status and charged simple negligence in the operation of the motor vehicle. Defendant denied liability; denied that the plaintiff was a passenger-for-hire; and plead contributory negligence. The case came on for trial, and, at the conclusion of all of the evidence, the court announced that it would direct a verdict for the defendant, since the court found, as a matter of law, that the plaintiff was not a passenger-for-hire, and hence, was subject to the provisions of the Florida Guest Statute. At that time, counsel for the plaintiff made a motion to amend the pleadings to plead gross negligence, and thereby comply with the Guest Statute. The court granted this motion, but offered the defendant a continuance of trial. The defendant did not request a continuance, and the case was given to the jury after appropriate instructions on the question of gross negligence. The jury brought in a verdict in favor of the plaintiff.

In this appeal the defendant seeks reversal of the judgment by maintaining: 1] that the announcement by the court of the direction of verdict on the issue of guest-passenger status constituted an adjudication on the merits, and the court was without authority to grant an amendment of pleadings so as to allow the plaintiff to assert a new and different cause of action; and 2] that the jury selected and impaneled to try one cause of action could not make determinations on a new and entirely different cause of action. The first question involves the construction of Rule 1.15 of the Florida Rules of Civil Procedure, 30 F.S.A., which reads, in Sub-Section (b), as follows:

'Amendments to Conform with the Evidence. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment or decree; but failure so to amend shall not affect the result of the trial of these issues. * * *'

And again, in Sub-Section (e), it is provided:

'Amendments Generally. The court may at any time, in furtherance of justice, upon such terms as may be just, permit any process, proceeding, pleading or record to be amended, or material supplemental matter to be set forth in an amended or supplemental pleading. The court, at every stage of the proceedings, must disregard any error or defect in the proceedings which does not affect the substantial rights of the parties.'

It is noted that while the court stated that it intended to enter a directed verdict for the defendant, it had not done so at the time that it allowed the amendment. Hence, the court could have, and should have, allowed the amendment as requested by the plaintiff. No new testimony needed to be taken, and the only problem that the court had was to instruct the jury in accordance with the amendment. At that point the court offered the defendant a continuance if it were deemed necessary, but the court's offer of continuance was waived. That the court had authority to proceed as it did is amply shown in 25 Fla.Jur., Pleadings, Sec. 111, where it is stated:

'It is ordinarily within the sound discretion of the trial court to permit an amendment to conform to the proof where evidence has been introduced without objection as to facts not presented, or insufficiently presented, by the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made on motion of any party at any time. * * *'

In Atlantic Coast Line Railroad Company v. Bracewell, Fla.App.1959, 110 So.2d 482, the plaintiff instituted suit against the railroad and the engineer-operator of its train to recover for personal injuries. The...