Opinion
Opinion Filed May 3, 1940 Rehearing Denied July 8, 1940
A Writ of Error from the Circuit Court for Duval County, A.D. McNeill, Judge.
George M. Powell, Henry P. Adair, John M. McNatt, William H. Rogers and Fred H. Kent, for Plaintiff in Error;
Robert H. Anderson, Harry T. Gray and Charles E. Davis, for Defendant in Error.
This case was before us in Yates v. Ball, 137 Fla. 530, 188 So. 586. It appears now on an appeal from a judgment in favor of the plaintiff below. When it was presented before, the trial judge had instructed a verdict for the defendant at the close of the plaintiff's testimony and on that appeal we held that the jury should have been permitted to pass upon the issues after introduction of the defendant's testimony.
Following that decision the circuit court conducted an extensive trial at which there was offered voluminous testimony on the part of the respective litigants.
With the picture of the transaction now complete, we are of the view that the verdict is not supported by the evidence adduced in support of the allegations of the declaration and the motion for a new trial should have been granted with leave to amend the declaration if so advised.
For the reasons stated, the judgment is reversed and a new trial awarded.
So ordered.
TERRELL, C. J., WHITFIELD, BROWN, BUFORD, CHAPMAN and THOMAS, J. J., concur.
I concur in the per curiam opinion excepting that part referring to an amendment of the declaration.