FRIEDA COLLINS, AS GUARDIAN OF THE PERSON AND PROPERTY OF ELMER J. COLLINS, AN INCOMPETENT, APPELLANT,
v.
MURL S. BURNS, APPELLEE
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The appellate court affirmed a jury's award of $800 to a plaintiff, as guardian for an incompetent, because the trial court correctly struck the claim for permanent mental injury. The court found no competent evidence supported the claim that the accident aggravated the incompetent's pre-existing mental condition.
No, the trial court did not err in striking the claim for permanent mental injury. There was no competent evidence presented to suggest that the accident aggravated the incompetent's pre-existing mental condition.
“It is the opinion of the Court there is insufficient competent evidence to establish the allegations of a permanent injury in the nature of a mental condition, or aggravation thereof, and the motion to strike that element of damage is granted.”
This quote states the trial court's ruling that was the subject of the appeal.
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Join FLexlaw to unlock all legal intelligenceThe plaintiff, as guardian for an incompetent, sued for damages from an accident. The trial court struck the claim for permanent mental injury, findin…
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The appellant, plaintiff in the trial court, appeals a final judgment rendered upon a favorable jury verdict awarding her $800.-00, as guardian of the person and property of Elmer J. Collins, an incompetent.
The only error preserved for review by this court is the ruling of the trial court at the conclusion of the plaintiff’s case, as follows:
“It is the opinion of the Court there is insufficient competent evidence to establish the allegations of a permanent injury in the nature of a mental condition, or aggravation thereof, and the motion to strike that element of damage is granted.”
It is the contention of the appellant that it was within the province of the jury to determine whether the accident in question aggravated the previous mental condition of the incompetent. If any competent evidence had been introduced in the cause tending to show damage to a preexisting mental condition, this would have been a matter within the province of a jury. However, the record is totally void of any evidence which tended to indicate that the accident in question.aggravated pre-existing mental deficiencies of the incompetent. The evidence, in fact, was to the contrary. Therefore, there being no evidence from which the jury could find an aggravation of a pre-existing condition, it would have been error for the trial judge to submit this issue to the jury. See: Braunstein v. McKenney, Fla.1954, 73 So.2d 852. No error having been demonstrated by the appellant, the final judgment here under review is hereby affirmed.
Affirmed.
(dissenting).
I respectfully dissent, and would grant a new trial on damages. The testimony of Dr. Lapinsohn constituted sufficient evidence of aggravation to warrant placing that issue of damages before the jury.
CARROLL, Judge
(dissenting).
I respectfully dissent, and would grant a new trial on damages. The testimony of Dr. Lapinsohn constituted sufficient evidence of aggravation to warrant placing that issue of damages before the jury.
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Citator
Cited By
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Snedegar v. Arnone, 532 So. 2d 717 (Fla. 4th DCA 1988)…ff; but we find no case law that says the pertinent evidence must have been part of plaintiffs case in chief; and appellant points out that in her initial complaint she pled the aggravation of a preexisting or latent condition. In Collins v. Burns, 160 So. 2d 550, 551 (Fla. 3d DCA 1964), wherein the majority nevertheless found no error in the trial court’s striking of damages for aggravation of a preexisting condition, it is stated that if any competent evidence had been introduced to show such injury, this…
Authorities Cited
- Braunstein v. McKENNEY, 73 So. 2d 852 (Fla. 1954)