Opinion
No. 6503.
August 19, 1966.
Appeal from the Circuit Court for Hillsborough County, John G. Hodges, J.
Edward J. Hunter, Tampa, for appellants.
David G. Hanlon, of Shackleford, Farrior, Stallings, Glos Evans, Tampa, for appellee.
Appellants, plaintiffs below, appeal from an order granting a new trial entered pursuant to the motion of appellee, defendant below.
Plaintiff, Joann Gardner, was injured in an automobile accident between a vehicle she was driving and a tractor-trailer owned by defendant. She brought suit against defendant seeking damages for injuries allegedly received in the accident. Daniel Gardner, her husband, joined in the suit seeking various derivative damages.
Evidence at the jury trial showed the injuries received by Mrs. Gardner and included some testimony on the aggravation of a pre-existing thyroid condition. After the jury returned a favorable verdict for the plaintiffs, the trial court granted defendant's motion for new trial on these grounds:
"(a) That the Court erred in denying defendant's Motion to Strike the testimony offered by plaintiff of an injury to her thyroid.
(b) That the Court erred in submitting an instruction to the jury on the aggravation of a pre-existing condition
(i) For the reason that plaintiff failed to allege this as an item of special damages in her Complaint, and
(ii) For the reason that plaintiff failed to prove by competent medical testimony that the collision alleged in the Complaint caused an aggravation of a pre-existing thyroid condition. Tampa Transit Lines, Inc. v. Smith, [Fla. App.] 155 So.2d 557; Arkin Construction Company v. Simpkins [Fla.], 99 So.2d 557 (1957) and Ephrem v. Phillips, 99 So.2d 257, Fla. [App.] 1957.
(c) That the Court erred in denying defendant's Motion for a Mistrial on the ground that repeated attempts to introduce into evidence that the driver of defendant's truck was cited for a traffic violation and convicted thereof in municipal court was prejudicial. Riedel v. Driscoll, [Fla.App.], 124 So.2d 42 (1960).
(d) That the verdict for the plaintiffs, Joann Gardner and Daniel W. Gardner, her husband, and against the defendants, Terminal Transport Company, Inc., a corporation, was against the manifest weight of the evidence, as to the amount of said verdict."
These grounds are the subject of our consideration.
We have studied the briefs and the record and conclude that two of the grounds, (c) and (d), are valid and do not merit discussion. Upon discussion two grounds, (a) and (b) (i), will be considered together; (b) (ii) will be given single consideration.
First, the Court's order stated that it erred in denying defendant's motion to strike the testimony offered by plaintiff of an injury to her thyroid and that it erred in submitting an instruction to the jury on the aggravation of a pre-existing condition.
The Court could not err in denying defendant's motion to strike since the record does not reveal such motion was made. Plaintiffs' proffered testimony on the aggravation of a pre-existing thyroid condition was never challenged at trial by a motion to strike even though this element of damage was not specifically pleaded under Rule 1.9(g), Fla.R.Civ.P., 30 F.S.A. (1965). Defendant first objected when plaintiff requested an instruction on the aggravation of a pre-existing condition. The Court's order granting the motion for new trial stated that the Court erred in giving this instruction, for one reason, because the aggravation of the pre-existing thyroid condition was not alleged under Rule 1.9(g).
Rule 1.9(g) states that claimed items of special damage must be specifically set out at the pleading stage. Rule 1.9(g) apparently conflicts with the liberal Rule 1.15, Fla.R.Civ.P.(1965), entitled Amended and Supplemental Pleadings. Rule 1.15(b) states:
"(b) 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 pleading. 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. If the evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings the court may allow the pleadings to be amended to conform with the evidence; and shall do so freely when the merits of the cause are more effectually presented thereby and the objecting party fails to satisfy the court that the admission of such evidence will prejudice him in maintaining his action or defense upon the merits."
This rule allows the liberal amendment of pleadings at any time so as to conform to the evidence. Failure to so amend, we note, should not affect the result of the trial on these issues. The result in the case sub judice was so affected.
Judge Kanner, writing the opinion in a very similar case, Owca v. Zemzicki, Fla. App. 1962, 137 So.2d 876, resolved the apparent conflict between Rules 1.9(g) and 1.15(b).
In Owca, the defendant objected to an instruction relating to impairment of earning capacity on the ground that this matter of special damages was not pleaded under Rule 1.9(g). However, the defendants failed, during the trial, to object to the testimony on impairment of future earning capacity. The trial court allowed, upon plaintiff's motion, amendment of the pleadings to conform with the evidence. The defendant appealed arguing that the trial court erred in instructing the jury, over defendant's objection, upon impairment of earning capacity. Our court in affirming the trial court's ruling stated:
"* * * If evidence is introduced as to facts or issues not presented in the pleadings, the court in its discretion may authorize amendment so as to facilitate presentation of the merits of the case; and amendment of the pleadings is not necessarily considered imperative where no objection has been made that the evidence is not within the scope of the pleadings in a case which is tried as if the issue had been raised. See Robbins v. Grace, Fla.App. 1958, 103 So.2d 658; Fearing v. De Lugar Neuvo, Fla.App. 1958, 106 So.2d 873."
Since Owca states that failure to amend the pleadings should not affect the result at trial in spite of Rule 1.9(g) and the record fails to show a motion to strike the evidence of aggravation, we hold, for these reasons, the court correctly gave the instruction on the aggravation of a pre-existing condition.
The trial court's order, however, gave a second reason for holding that it erred in giving the instruction on the aggravation of a pre-existing condition, (b) (ii). We must uphold ground (b) for the reason stated in (ii) only, on the authority of Cloud v. Fallis, Fla. 1959, 110 So.2d 669, because of the absence from the record of an opinion by an expert in response to a hypothetical question on the causal relationship between the accident and aggravation of the pre-existing thyroid condition.
Affirmed.
SHANNON, J., and FUSSELL, CARROLL W., Associate Judge, concur.