ALLSTATE INSURANCE COMPANY, APPELLANT,
v.
DAVID POUGH ET UX., ET AL., APPELLEES

Fla. 1st DCA | 1977-06-20
No. DD-269
Boyer, C. J., McCord, J., Mills, J.
347 So. 2d 755 Florida District Court of Appeal, First District (1977) Negative Treatment
Cited by 26 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Allstate's appeal is granted and the case is reversed for a new trial because the trial judge erred in instructing the jury on the affirmative defense of estoppel, which was neither raised in the pleadings nor supported by evidence.


Holding

A trial court errs when it instructs the jury on an affirmative defense that has not been raised by the pleadings or supported by evidence at trial.


Headnotes

[1] A trial court commits reversible error by instructing the jury on an affirmative defense that has not been pleaded and is not supported by evidence presented at trial.

Previewing 1 of 1 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

Facts & Procedural History

Allstate Insurance Company appealed a trial court judgment in a case involving David Pough and others, where the trial was conducted on theories and i…

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
PER CURIAM.

PER CURIAM.

Several points have been presented on this appeal, one questioning the jurisdiction of this court. We find that we do have jurisdiction. We also find that the learned trial judge was the manifestation of patience itself as the case was tried on theories and issues not raised by the pleadings. He did, however, err when he instructed the jury on the affirmative defense of estoppel which had neither been raised by the pleadings nor by the evidence adduced during the trial. No useful purpose will be served by a recitation of the facts nor will a discussion of the several points urged on the appeal affect the jurisprudence of the state of Florida. Inasmuch as we have determined that we must reverse because of the erroneous instruction on the defense of estoppel we anticipate, based upon comments of counsel during oral argument before this court, that were the parties permitted to replead (which we hereby suggest) prior to a new trial the matters giving rise to the remaining points on appeal should not reasonably be expected to reoccur. We accordingly reverse and remand for a new trial after the parties have been afforded an opportunity, should they so elect, to re-plead.

The motion of appellee Pough for attorney’s fees incident to this appeal is denied.

BOYER, C. J., and McCORD and MILLS, JJ., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By (11 total)

  • Lyman Walker, III v. State, 366 So. 2d 96 (Fla. 1st DCA 1979)
    …of Transportation, 352 So. 2d 126 (Fla. 1st DCA 1977) upholding the DOT’s denial of the “farm produce exemption” of Florida Statute § 479.16(2) for Walker’s signs. . 23 U.S.C. § 131. . 23 U.S.C. § 131(g), (n); Fla.Stat. § 479.24(1); Brazil v. DOA, 347 So. 2d 755 (Fla. 1st DCA 1977) holding owner of sign erected after December 8, 1971, in violation of spacing regulations of highway beautification act, was entitled, on removal of sign, to compensation based on the actual value of the materials in the sign, un…
  • Tribune Co. v. L.R. Huffstetler, Jr., 489 So. 2d 722 (Fla. 1986)
    …under the statute or in an action alleging an imminent threat of such prosecution. Greenway v. State, 413 So. 2d 23 (Fla.1982); State v. Millington, 377 So. 2d 685 (Fla.1979); Brazil v. Division of Administration, State Department of Transportation, 347 So. 2d 755 (Fla. 1st D.C.A. 1977), disapproved on other grounds, 398 So. 2d 1370 (Fla.1981); Duran v. Wells, 307 So. 2d 259 (Fla. 2d D.C.A. 1975). Tunstall has not been charged under the statute, and the courts of this nation have long held that one individua…
  • Lamar-Orlando Outdoor Advertising v. City OF Ormond Beach, 415 So. 2d 1312 (Fla. 5th DCA 1982)
    …y of Lake Wales v. Lamar Advertising Association, 399 So. 2d 981 (Fla. 2d DCA 1981), rev’d in part, 414 So. 2d 1030 (Fla.1982); City of Naples v. Polk, 346 So. 2d 1076 (Fla. 2d DCA 1977). . Brazil v. Div. of Administration, State Dep’t. of Transp., 347 So. 2d 755 (Fla. 1st DCA 1977), disapproved on other grounds, LaPointe Outdoor Advertising v. Florida Dep’t. of Transp., 398 So. 2d 1370 (Fla.1981); State ex rel. Boozer v. City of Miami, 193 So. 2d 449 (Fla. 3d DCA 1967). . U.S.Const. amend. V, XIV; Art. I,…

Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.

Join FLexlaw to unlock all legal intelligence

Full citator, related cases, and AI research tools

Open in FLexlaw