WINN-DIXIE STORES, INC., APPELLANT,
v.
CYNTHIA NALL AND JOHNNY NALL, INDIVIDUALLY AND AS HUSBAND AND WIFE, APPELLEES
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NATHAN, Judge.
Appellant, defendant in the trial court, seeks review of the damage award of an amended final judgment rendered pursuant to a jury verdict in favor of the plaintiff in a personal injury action.
On December 8, 1971, while shopping in a Winn-Dixie Store, plaintiff, Cynthia Nall, slipped on some foreign matter in the aisle, allegedly bath oil, and fell, sustaining injuries.
The jury found Mrs. Nall 35 per cent negligent and the defendant 65 per cent negligent and awarded plaintiff judgment for money damages.
We consider the salient issues on appeal to be whether the trial court erred in instructing the jury on (1) aggravation of, pre-existing disease or physical defect which had not been pleaded in the complaint and on (2) nursing care which had not been brought out by testimony or other evidence.
Instructions to the jury must be predicáted upon facts in proof. Therefore, it is, of course, improper to charge on an issue where either no material evidence or no evidence at all has been submitted. See Bessett v. Hackett, Fla.1953, 66 So. 2d 694. In the case sub judice, there is sufficient evidence from medical witnesses in the record to support the court’s instruction on aggravation of a pre-existing condition. While the record does show some evidence as to nursing care and the cost thereof, this evidence was meager to justify the charge. However, inasmuch as the instruction did not relate materially to the total amount of the damages awarded by the jury, the error, if any, is harmless. See Fla.Stat. § 59.041.
We have also considered appellant’s remaining points on appeal and find them without merit.
Affirmed.
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Am. Nat'l Bank OF Jacksonville v. Norris, 368 So. 2d 897 (Fla. 1st DCA 1979)…have examined all of the instructions and find that the instructions given were not prejudicial to the bank. See OWCA v. Zemzicki, 137 So. 2d 876 (Fla.2d DCA 1972); Hart v. Jackson, 142 So. 2d 326 (Fla.1st DCA 1962); Winn Dixie Stores, Inc. v. Nall, 302 So. 2d 781 (Fla.3d DCA 1974); and Section 59.041, Florida Statutes (1977). We have considered the remaining points urged for reversal by the Appellant-Bank, but find them to be without substantial merit. In the cross-appeal, Norris contends that the trial co…
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Jami L. Carmona and Evangelina Carmona v. Carrion, 779 So. 2d 337 (Fla. 2d DCA 2000)…t wages, future pain and suffering, and Emilio Carrion’s alleged loss of consortium. A trial court cannot give a particular jury instruction on an issue unless material record evidence supports that instruction. See Winn-Dixie Stores, Inc. v. Nall, 302 So. 2d 781, 781-82 (Fla. 3d DCA 1974). The trial court erred in giving the aggravation instruction. The record contains no evidence supporting such an instruction. Rather, the jury heard specific, direct evidence from both Aida Carrion’s expert and the Carmona…
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Eden v. Food Fair Stores, Inc., 330 So. 2d 540 (Fla. 3d DCA 1976)…ces, and particularly where the jury was fully instructed upon the law pertaining to automobile negligence, the refusal of the instruction on the change of lane regulation was not reversible error. Cf. Winn-Dixie Stores, Inc. v. Nall, Fla.App. 1974, 302 So. 2d 781. The remaining point which we think merits discussion is appellant’s point 9. It is as follows: “The trial court erred in allowing defendants’ expert witness, Harry Meyer-sohn, to testify over objection concerning an experiment where it was not sh…
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- State v. Bohanan, 66 So. 2d 694 (Fla. 1953)