No. 63-810 | Fla. Dist. Ct. App. | Jun 23, 1964
This is an appeal from a final judgment for the defendant. The action brought by the plaintiff, appellant, was for personal injuries. He suffered an adverse jury verdict upon which the judgment was entered.
The principle contention of the appellant is that it was reversible error for the court to charge the jury on the issues of (1) assault and battery, (2) negligence and (3) contributory negligence, without stating that contributory negligence was not a defense to assault and battery. It is clear that under the facts shown by this record it would have been proper to have added such an instruction to the charge of the court. However, where the verdict is conformable to the law and to the facts, an appellate court will not set it aside merely because the court failed to give an instruction that might properly have been given. City of Jacksonville v. Vaughn, 92 Fla. 339" date_filed="1926-07-24" court="Fla." case_name="City of Jacksonville v. Vaughn">92 Fla. 339, 110 So. 529; Maistrosky v. Harvey, Fla.App.1961, 133 So. 2d 103" date_filed="1961-09-22" court="Fla. Dist. Ct. App." case_name="Maistrosky v. Harvey">133 So.2d 103.
The applicability of this rule is clear where, as here, the only objection to the-court’s ruling at the charge conference, that it would charge on contributory negligence,, was that “there is no evidence of contributory negligence”. Fred Howland, Inc. v. Morris, 143 Fla. 189, 196 So. 472, 128 A.L.R. 1013.
Affirmed.