ROBERT W. POWELL, INDIVIDUALLY AND AS FATHER AND NEXT FRIEND OF JAMES POWELL, A MINOR, APPELLANTS,
v.
WILLIAM FREDERICK HEGNEY AND YVONNE IRENE HEGNEY, APPELLEES
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The appellate court reversed a trial court's judgment as to the minor plaintiff's damages claim because the court omitted key damage elements (disability, mental anguish, and loss of capacity for enjoyment of life) from its jury instruction, even though it had indicated it would give the complete standard jury instruction.
The court held that when a trial court informs counsel it will give a specific standard jury instruction and then materially omits or deviates from that instruction, the omission constitutes reversible error, particularly when counsel has timely objected. The court reversed as to the minor plaintiff's damages claim and remanded for a new trial on damages, but affirmed the father's judgment.
[1] A trial court commits reversible error by omitting material elements of damages from jury instructions when those elements are part of a standard jury instruction that th…
[2] Failure of counsel to object to a material omission or deviation from a standard jury instruction does not preclude appellate review of the alleged error.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“We hold that where the court informs counsel that it will give a certain standard jury instruction, and then makes a material omission or deviation from that instruction, failure of counsel to object at the time the instruction is given does not preclude an appellate court from considering the alleged error on appeal.”
Establishes the legal standard that material omissions from announced standard jury instructions are reviewable error regardless of whether counsel objects at trial
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceRobert Powell's minor son James, who had lost a leg to cancer at age ten, was involved in an accident at age seventeen. Despite his handicap, James ha…
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The sole point to be considered in this opinion is whether or not the trial court committed reversible error in omitting from its charge to the jury certain elements of damage as contained in Florida Standard Jury Instruction 6.2.
The plaintiff is a seventeen year old boy, who, at the age of ten had one of his legs amputated above the knee because of cancer. In spite of his handicap the plaintiff developed into an extremely active athlete. He competed on his school swimming team and was also adept at dancing and bowling. The minor plaintiff claimed that following the accident in question he was no longer able to swim competitively and was restricted in other activities, sportswise and socially, following his involvement in the accident.
At trial the defendants admitted liability, waived opening statement and the plaintiffs proceeded to prove their damages. The defendants put on no testimony.
After both sides rested, the court advised counsel that the requested instructions of both the plaintiffs and the defendants were granted. No formal conference on instructions was held.
When the court charged the jury the following instruction was given which omitted certain elements of damages:
“You may consider the following elements, any bodily injury sustained by James Powell and any resulting pain and suffering experienced in the past or to be experienced in the future. There is no exact standard for fixing the compensation to be awarded on account of such element of damages. Any such award *600should be fair and just in the light of the evidence.”
The instruction requested by the plaintiffs and granted by the court was a verbatim recitation of the form contained in Florida Standard Jury Instruction 6.2(a), the plaintiffs’ requested instruction reading as follows:
“Any bodily injuries sustained by James Powell, a minor, and any resulting pain and suffering, disability, mental anguish and loss of capacity for the enjoyment of life experienced in the past or to be experienced in the future. There is no exact standard for fixing the compensation to be awarded on account of such elements of damage. Any such award should be fair and just in the light of the evidence.” (Emphasis supplied.)
An analysis of the facts at hand reveals that this situation falls squarely within the rule enunciated in the recent case of Capone v. Winn-Dixie Stores, Inc., Fla.App.1970, 233 So.2d 175. In Capone, supra, as in the present case, the court advised counsel that it would give the Standard Jury Instructions including 6.2(a). In actually giving the instruction on damages, the court failed to include the elements of disability, mental anguish and inability to lead a normal life. In reversing the trial court’s denial of a motion for new trial, the District Court of Appeal, Second District, held that the Court erred in not including the three specified elements of damages in the jury instructions. In Capone, counsel for the plaintiffs made no objection in the trial court regarding the omission of the damage items from the jury instructions. Nevertheless, the appellate court held, and we quote, supra, p. 178:
“We hold that where the court informs counsel that it will give a certain standard jury instruction, and then makes a material omission or deviation from that instruction, failure of counsel to object at the time the instruction is given does not preclude an appellate court from considering the alleged error on appeal.”
The case at hand is stronger than the Capone case, supra, in that counsel for the plaintiffs made timely objection, calling the omission to the attention of the trial court before the jury retired to deliberate. Nevertheless, the trial court overruled the objection expressing the view that to re-instruct the jury oh 6.2(a) would be prejudicial to the defendant.
The point on appeal refers only to the claim of the minor plaintiff, James W. Powell, and does not apply to the claim of the father, Robert W. Powell. Accordingly, we remand with instructions to grant a new trial on the issue of damages only as to the claim of the minor James Powell. The final judgment as regards the recovery by the father, Robert W. Powell, in the sum of $1,000.00, is affirmed.
Reversed as to the claim of James Powell, a minor; affirmed as to the claim of Robert W. Powell.
CROSS, C. J., and McCAIN, J., concur.
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Howell v. Bennie Woods, 489 So. 2d 154 (Fla. 4th DCA 1986)…eneral verdict on appeal, as appellant cannot establish that he has been prejudiced). We believe appellee’s argument is legally sound, however tempting it may be to speculate upon the jury’s action.3 Appellants continue to rely on Powell v. Hegney, 239 So. 2d 599 (Fla. 4th DCA 1970) and Capone v. Winn-Dixie Stores, Inc., 233 So. 2d 175 (Fla.2d DCA 1970), which were cited in their original brief, as well as additional authorities. Appellee points out that in Powell v. Hegney the error was omission of a critic…
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Lawn v. Wasserman, 248 So. 2d 548 (Fla. 3d DCA 1971)…equested charge as to loss of ability to earn money in the future, where the judge had earlier ruled that he would give such an instruction. Capone v. Winn-Dixie Stores, Inc., Fla.App.1970, 233 So. 2d 175, 177-178 and Powell v. Hegney, Fla.App.1970, 239 So. 2d 599. They have held that this is reversible error. We agree, and reverse and remand for a new trial as to damages only. Therefore, we express no view as to the other points raised. Reversed and remanded for a new trial as to damages only.…
Authorities Cited
- Capone v. Winn-Dixie Stores, Inc., 233 So. 2d 175 (Fla. 2d DCA 1970)