(dissenting).
I respectfully dissent. A trial judge does not instruct the jury on the issues raised solely by the pleadings, or on remarks made by counsel for defendant in opening statements.
“Even though an issue is raised by the pleadings it is not proper to give an instruction thereon where there is no basis for it in the evidence. 32 Fla. Jur. Trial § 169.”
I do not believe there was a sufficient evidentiary basis for the requested “negative charge” and such charge was not applicable.
Even if we assume a sufficient eviden-tiary basis to have required the court to give the requested “negative charge” it is not reversible error. This court, in Florida East Coast Railway Company v. Law-ler, Fla.App.1963, 151 So.2d 852, said:
“The failure to give a requested charge which is proper and applicable will not constitute reversible error where its substance or subject is covered in other charges given by the court, or where the failure to give it is not shown to be prejudicial.”
See also Hill v. Sadler, Fla.App.1966, 186 So.2d 52; and Williams v. Scott, Fla. App.1963, 153 So.2d 18.
I would, therefore,
Affirm.