Rice v. Clement
| Citation | 184 So.2d 678 |
| Decision Date | 31 March 1966 |
| Docket Number | No. 114,114 |
| Court | Court of Appeal of Florida (US) |
| Parties | Brooks RICE, Appellant, v. Baxter L. CLEMENT, M.D., Appellee. |
Robert S. Lyons, Fort Lauderdale, for appellant.
A. Lee Bradford and A. H. Toothman, of Dixon, DeJarnette, Bradford, Williams, McKay & Kimbrell, Miami, for appellee.
STURGIS, WALLACE E., Associate Judge.
Plaintiff below appeals from a judgment for defendant entered pursuant to verdict of the jury in this malpractice action.
The original complaint demanded punitive damages on the ground that the defendant physician was guilty of willful, reckless and wanton conduct in treating an injury to plaintiff's left foot, but did not state with particularity and acts of omission or commission on the part of the defendant relied on by plaintiff as constituting such conduct. On motion to dismiss the court struck from said complaint all claims for punitive damages, with leave to plaintiff to amend, thereby limiting plaintiff's claim under that complaint to one based on simple negligence. Plaintiff filed an amended complaint on which issue was joined, but did not assert therein any basis for or claim punitive damages.
Defendant generally denied the material allegations of the complaint but for some unexplained reason did not formally plead contributory negligence as a defense. It appears, however, that on July 6, 1964, approximately three months prior to trial, counsel for defendant informed the court by letter, copy of which was sent to and received by counsel for plaintiff, that it was defendant's intention to rely upon contributory negligence as a defense, and on August 7, 1964, a pretrial order was entered providing, inter alia:
'Defendant denies any negligence and has interposed a plea of contributory negligence based on defendant's contention that plaintiff failed to follow defendant's instructions and failed to properly avail himself of readily available medical treatment when it should have been apparent to plaintiff that the wound was not healing as the doctor had expected.'
There was no effort prior to trial to have said order amended or corrected in any respect. After commencement of the trial plaintiff attempted to exclude contributory negligence as an issue on the ground that defendant had not pleaded same as a defense and that the pretrial order recognizing such defense was in error because the subject had not been discussed at the pretrial conference. To support the latter premise plaintiff proffered a transcript of the proceedings at the conference. The trial judge observed that his notes of the conference indicated that contributory negligence was an issue to be tried, denied said proffer and permitted said issue to be tried.
After the jury had retired to consider its verdict, it returned to the jury box and requested and received additional charges on the issues tried, including contributory negligence.
It would serve no useful purpose to detail the material facts presented to the jury. Suffice it to say that from a careful review of the extensive record in this cause we have concluded that on the issues made the evidence is ample to support the jury verdict. Our discussion will be confined, therefore, to points of law involved on this appeal other than appellant's challenge to the sufficiency of the evidence.
Appellant further contends that the trial court erred: (1) in granting defendant's motion to strike all portions of the original complaint pertaining to gross, willful, or wanton negligence and all claims for damages of a punitive nature; (2) in permitting the issue of contributory negligence to be tried; (3) in sustaining an objection to plaintiff's attempt, on cross-examination of the defendant, 'to develop the reason or lay a predicate to show the jury that the Defendant refused to admit that any medical literature, texbook, (or) encyclopedia was authoritative and relied on by the Defendant' in...
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Rupp v. Bryant
...... See Rice v. Clement, 184 So.2d 678 (Fla. 4th DCA 1966). For exemplary damages to be recovered, the complaint must allege facts and circumstances of fraud, ......
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Baron Oil Co. v. Nationwide Mut. Fire Ins. Co., AR-437
...portion of the original pleading. Commercial Garden Mall v. Success Academy, Inc., 453 So.2d 934 (Fla. 4th DCA 1984); Rice v. Clement, 184 So.2d 678 (Fla. 4th DCA 1966); Shannon v. McBride, 105 So.2d 16 (Fla. 2d DCA 1958). Consequently, when an original complaint has been superseded by an a......
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Purcell v. Zimbelman, 2
...& Surgeons Hospital, 415 S.W.2d 674 (Tex.Civ.App.1967); Dabroe v. Rhodes Co., 64 Wash.2d 431, 392 P.2d 317 (1964); Rice v. Clement, 184 So.2d 678 (Fla.App.1966); Annot., 84 A.L.R.2d 1338 (1962). It is also the rule that an expert witness may be cross-examined as to whether he admits other b......
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Green v. American Tobacco Company
....... Neither did the Court commit reversible error in declaring inadmissible the surgeon generals report, Bish, supra; Rice v. Clement, Fla.App., 1966, 184 So. 2d 678. . Of course, an expert may give an opinion based on the results of experiments by others ......
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Using medical literature on direct examination to win the "battle of the experts".
...not provide that the learned treatise is admissible to provide the truth of the contents of the treatise."). See also Rice v. Clement, 184 So. 2d 678 (Fla. 4th D.C.A. 1966) ("Medical works cannot be read or introduced before juries as independent, substantive or affirmative (11) See general......
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Section 57.105's new look: the Florida Legislature encourages courts to sanction unsupported claims and dilatory actions.
...General Security Insurance Co. v. Horal, 667 So. 2d 967 (Fla. 4th D.C.A. 1996)). See FLA. R. CIV. P. 1.100(a). (68) See Rice v. Clement, 184 So. 2d 678, 680 (Fla. 4th D.C.A. 1966) ("[a]n original pleading is superseded by an amendment of it which does not express an intention to save any po......