Weiss v. Ballagh

169 So. 2d 530

• Court: District Court of Appeal of Florida
• Decided: December 9, 1964
• Docket: No. 4453
• Status: Published

Opinion

ANDREWS, Judge.

This is an appeal from a jury verdict and judgment for the defendant in an automobile negligence case.

The plaintiff was a passenger in the car driven by the defendant. Both the plaintiff and the defendant were students at the University of South Florida. The defendant was going to the home of his parents for the weekend, and the plaintiff, whose home was in Lakeland, was going to the home of his brother for the weekend.

The complaint alleged simple negligence. At a pre-trial conference the plaintiff’s counsel declined to amend the complaint to include the count of gross negligence. The answer denied negligence, and also challenged the materiality of the fact that both parties were students at the University of South Florida at the time of the accident.

Two questions were submitted to the jury: (1) whether or not the plaintiff was in the class (i. e,, school children) excepted from the guest statute, F.S.A. § 320.59; and (2) the negligence of the defendant.

It was error to submit the first question to the jury. In the case of Nordone v. Richardson, Fla.App., 168 So.2d 550, opinion filed November 3, 1964, Third District of Florida, it was held that a college student came within the exception to the statute. The record clearly establishes that the plaintiff was being “transported * * * from * * * [a] place (s) of learning.”

Accordingly, the cause is reversed with directions to grant a new trial on the question of simple negligence of the defendant.

Reversed.

SHANNON, Acting C. J., and WHITE, J., concur.