Wilkinson v. State ex rel. Department of Transportation & Development

The writ application represents and the Court of Appeal opinion, 434 So.2d 1155, confirms that both the trial court and the Court of Appeal declined to consider evidence as to contributory negligence, which was alleged as a defense but not particularized. Relator further represents that both defendant and plaintiff proffered considerable evidence on this issue.

*389-393Since it appears that the proffered evidence raises a serious question as to “the merits of the action”, the trial court erred in failing to allow the pleadings to be amended and consider the evidence, after offering the objecting…