
    Bertha Mae CLARK, as widow of Eugene Clark, deceased, Appellant, v. James GRAY, Appellee.
    No. 61-530.
    District Court of Appeal of Florida. Third District.
    July 17, 1962.
    Rehearing Denied Aug. 23, 1962.
    Reece & Murray, Miami, for appellant.
    Dixon, Dejarnette, Bradford, Williams, McKay & Kimbrell and Milton R. Adkins, Miami, for appellee.
    Before PEARSON, TILLMAN, C. J., and BARKDULL and HENDRY, JJ.
   PER CURIAM.

Affirmed. See: Crosby v. Stubblebine, Fla.App.1962, 142 So.2d 358.

PEARSON, TILLMAN, C. J., dissents.

PEARSON, TILLMAN, Chief Judge

(dissenting).

It is my view that this judgment should: be reversed and the cause remanded for a new trial because of an erroneous instruction. The instruction was, I think, contrary to the law of this State as set forth in Carraway v. Revell, Fla.1959, 116 So.2d 16, 22.

The faulty instruction was objected to at charge conference, and the record reveals that it was upon a vital issue. It was therefore prejudicial. Once it appears-from the record that the issue is vital, it ought not to be incumbent on a party to include unnecessary matter in the record. T would think it most unfortunate if the opinion cited by the majority were interpreted to require unnecessary matter in a record.  