ALLSTATE INSURANCE COMPANY, APPELLANT,
v.
DAVID POUGH ET UX., ET AL., APPELLEES
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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.
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.
[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.
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Join FLexlaw to unlock all legal intelligenceAllstate Insurance Company appealed a trial court judgment in a case involving David Pough and others, where the trial was conducted on theories and i…
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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.
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