No. 61-530 | Fla. Dist. Ct. App. | Jul 17, 1962
Lead Opinion
Affirmed. See: Crosby v. Stubblebine, Fla.App.1962, 142 So. 2d 358" date_filed="1962-06-13" court="Fla. Dist. Ct. App." case_name="Crosby v. Stubblebine">142 So.2d 358.
Dissenting Opinion
(dissenting).
It is my view that this judgment should: be reversed and the cause remanded for a new trial because of an erroneous instruction. The instruction was, I think, contrary to the law of this State as set forth in Carraway v. Revell, Fla.1959, 116 So. 2d 16" date_filed="1959-11-25" court="Fla." case_name="Carraway v. Revell">116 So.2d 16, 22.
The faulty instruction was objected to at charge conference, and the record reveals that it was upon a vital issue. It was therefore prejudicial. Once it appears-from the record that the issue is vital, it ought not to be incumbent on a party to include unnecessary matter in the record. T would think it most unfortunate if the opinion cited by the majority were interpreted to require unnecessary matter in a record.