WILLIAM G. RITTENBERY, AND AUTO-OWNERS INSURANCE COMPANY, A CORPORATION, APPELLANTS,
v.
BETTY EDDINS, APPELLEE

Fla. 1st DCA | 1973-02-13
No. O-104
CARROLL, DONALD K., Acting C. J., and RAWLS, J., concur., WIGGINTON, J., dissents.
272 So. 2d 840 Florida District Court of Appeal, First District (1973) Positive Treatment
Cited by 6 cases
Topics
Personal Injury Jury Instructions

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Opinion of the Court
PER CURIAM.

PER CURIAM.

This cause having been orally argued before the Court, the briefs and record on appeal having been read and given full consideration, and the appellant having failed to demonstrate reversible error, the judgment of the lower court appealed from herein is affirmed.

CARROLL, DONALD K., Acting C. J., and RAWLS, J., concur.

WIGGINTON, J., dissents.

WIGGINTON, Judge

(dissenting).

This is an appeal from an order rendered by the trial court granting plaintiff a new trial in a personal injury action in which the jury found in favor of defendant. The sole ground assigned in support of the order is the holding of the trial court that it erred in refusing to give an instruction orally requested by plaintiff’s counsel during the charge conference between the court and the attorneys.

Rule 1.470(b), Rules of Civil Procedure, 30 F.S.A., requires that all requests for instructions to the jury be presented to the court in writing no later than at the close of the evidence. It is admitted that the requirements of the rule were not met in the case sub judice in that the instruction requested by plaintiff’s counsel was oral and not in writing. It has been repeatedly held by the courts of this state that a party may not complain because of *841the trial court’s refusal to give a requested charge which is not made in writing as required by the rule.1

In rendering the order granting a new trial in this cause the trial court erred in holding that it committed error by refusing to give plaintiff’s orally requested charge to the jury. This being the sole ground assigned in support of the order granting a new trial, and being erroneous as a matter of law, the order should be reversed and the cause remanded with directions that judgment be entered on the verdict.

Dissent
WIGGINTON, Judge

WIGGINTON, Judge

(dissenting).

This is an appeal from an order rendered by the trial court granting plaintiff a new trial in a personal injury action in which the jury found in favor of defendant. The sole ground assigned in support of the order is the holding of the trial court that it erred in refusing to give an instruction orally requested by plaintiff’s counsel during the charge conference between the court and the attorneys.

Rule 1.470(b), Rules of Civil Procedure, 30 F.S.A., requires that all requests for instructions to the jury be presented to the court in writing no later than at the close of the evidence. It is admitted that the requirements of the rule were not met in the case sub judice in that the instruction requested by plaintiff’s counsel was oral and not in writing. It has been repeatedly held by the courts of this state that a party may not complain because of the trial court’s refusal to give a requested charge which is not made in writing as required by the rule.1

In rendering the order granting a new trial in this cause the trial court erred in holding that it committed error by refusing to give plaintiff’s orally requested charge to the jury. This being the sole ground assigned in support of the order granting a new trial, and being erroneous as a matter of law, the order should be reversed and the cause remanded with directions that judgment be entered on the verdict.

. Sun Insurance Office, Ltd. v. Noel (Fla. App.1971) 254 So. 2d 7; Schiffman v. Powell System, Inc. (Fla.App.1971) 246 So. 2d 171; Marlowe v. State, 139 Fla. 307, 190 So. 602; Prevatt v. State, 135 Fla. 226, 184 So. 860.

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Cited By

  • Orfaly v. Jeffries, 290 So. 2d 575 (Fla. 3d DCA 1974)
    …ourt opinion in Thornton v. Elliott, Fla. 1973, 288 So. 2d 254, and this court’s opinion in Butler v. Woolco Department Store, Fla.App.1973, 284 So. 2d 434, and the opinion of the First District Court of Appeal in Rittenbery v. Eddins, Fla.App.1973, 272 So. 2d 840, we conclude that the request for a comparative negligence charge was “appropriately and properly” made during the trial, which would bring the matter within the retrospective application of Hoffman v. Jones, Fla.1973, 280 So. 2d 431. Therefore, th…
  • Rittenbery v. Eddins, 277 So. 2d 534 (Fla. 1973)
    …Certiorari denied. 272 So. 2d 840. CARLTON, C. J., and ROBERTS, BOYD, McCAIN and DEKLE, JJ., concur.…
  • Mathis v. Adler, 295 So. 2d 652 (Fla. 3d DCA 1974)
    …record, this case must be reversed for a new trial. See Hoffman v. Jones, Fla. 1973, 280 So. 2d 431. Thornton v. Elliott, Fla. 1973, 288 So. 2d 254; Butler v. Woolco Department Store, Fla.App.1973, 284 So. 2d 434; Rittenbery v. Eddins, Fla.App.1973, 272 So. 2d 840. Reversed and remanded for a new trial.…

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