
    Frieda COLLINS, as guardian of the person and property of Elmer J. Collins, an incompetent, Appellant, v. Murl S. BURNS, Appellee.
    No. 63-296.
    District Court of Appeal of Florida. Third District.
    Feb. 11, 1964.
    
      Tobin, Rubin & Salmon, Miami, and Edward A. Moss, for appellant.
    Blackwell, Walker & Gray and James E. Tribble, Miami, for appellee.
    Before CARROLL, and TILLMAN PEARSON, JJ., and LEE, THOMAS E., Jr., Associate Judge.
   LEE, THOMAS E., Jr., Associate Judge.

The appellant, plaintiff in the trial court, appeals a final judgment rendered upon a favorable jury verdict awarding her $800.-00, as guardian of the person and property of Elmer J. Collins, an incompetent.

The only error preserved for review by this court is the ruling of the trial court at the conclusion of the plaintiff’s case, as follows:

“It is the opinion of the Court there is insufficient competent evidence to establish the allegations of a permanent injury in the nature of a mental condition, or aggravation thereof, and the motion to strike that element of damage is granted.”

It is the contention of the appellant that it was within the province of the jury to determine whether the accident in question aggravated the previous mental condition of the incompetent. If any competent evidence had been introduced in the cause tending to show damage to a preexisting mental condition, this would have been a matter within the province of a jury. However, the record is totally void of any evidence which tended to indicate that the accident in question.aggravated pre-existing mental deficiencies of the incompetent. The evidence, in fact, was to the contrary. Therefore, there being no evidence from which the jury could find an aggravation of a pre-existing condition, it would have been error for the trial judge to submit this issue to the jury. See: Braunstein v. McKenney, Fla.1954, 73 So.2d 852. No error having been demonstrated by the appellant, the final judgment here under review is hereby affirmed.

Affirmed.

CARROLL, Judge

(dissenting).

I respectfully dissent, and would grant a new trial on damages. The testimony of Dr. Lapinsohn constituted sufficient evidence of aggravation to warrant placing that issue of damages before the jury.  