Valerie V. STEPHENS, Petitioner, v. Hugo DICHTENMUELLER, individually and d/b/a Fort Lauderdale Grocery Co., and Major C. Washington, Respondents, 216 So. 2d 448

PER CURIAM. We have for review on writ of certiorari the decision of the District Court of Appeal, Fourth District, in Stephens v. Dichtenmueller, 207 So.2d 718. We will not restate the factual situation in the case nor the issues therein since they are fully delineated in the District Court opinion. It is our opinion that the trial court, with the District Court affirming, failed to apply the rationale of Holl v. Talcott (Fla.), 191 So.2d 40, in refusing to permit amendment or supplementation of the affidavit submitted by plaintiff (Petitioner) in opposition to defendant’s motion for

summary judgment. The District Court expresses the view that “ * * * it is our opinion that the trial court could have rejected the conclusion embodied in the affidavit that the defendant’s truck at the time of the accident was in fact ‘cutting in on’ the motorcycle for either of two reasons. First, the trial court may have concluded that the affidavit did not affirmatively show that the affiant was competent to express the opinion contained in the affidavit as required by 1954 F.R.C.P. 1.36(e), (now F.R.C.P. 1.510(e), 31 F.S.A.).

Determining the competency of a witness offered as an expert is peculiarly a matter within the realm of the trial judge whose determination of the qualifications of the witness and the range of subjects regarding which he can offer opinion testimony will not be reversed in absence of an abuse of discretion. Krohne v. Orlando Farming Corp., Fla.App.1958, 102 So.2d 399; Seminole Shell Co. v. Clearwater Flying Co., Fla.App.1963, 156 So.2d 543, 545.

Secondly, the trial court may have considered that the opinion expressed was so vague and indefinite that it did not fairly and reasonably tend to demonstrate that an issue of fact existed as to negligence or contributory negligence. “[9] Finally, the appellant asserts in her brief that at the hearing- on the motion for

summary judgment she made an oral motion to amend the affidavit or to supplement it by a deposition of the affiant and this motion was denied. * * * ” (Text 723.) In Holl v. Tolcott, supra, we said: “While the trial court did not, in its order granting

summary judgment in this cause, indicate what deficiencies existed in Dr. Graubard’s affidavit, if we take those listed by the district court as being the ones relied on by the trial court, it appears that the defects were largely technical and subject to correction. A liberal treatment of the petitioners’ motion should have led to an order giving them the opportunity to supply the deficiencies. After all, had the same objection been raised by Dr. Graubard’s testimony at the trial, the plaintiffs could have rephrased the questions or otherwise remedied the alleged insufficiency. We think they should have the same opportunity in the

summary judgment procedure.” (Text 47.) Similarly, we note that the District Court in this case, without knowing for certain, speculated that the trial court rejected the affidavit filed on Petitioner’s behalf for two assumed deficiencies. And, similarly, it appears that had the Petitioner’s oral motion been granted her expert might have been able to correct the deficiencies in his affidavit and Petitioner would not have had her cause dismissed without trial.

The deficiencies in the affidavit, pointed out by the District Court, of failure to show affirmatively that affiant was competent to express the opinion contained therein and the vagueness of the affidavit, were largely technical and may have been amenable to correction similarly as was the affidavit in Holl v. Talcott. It appears to us the Petitioner under these circumstances, measured by the rationale of Holl v. Talcott, supra, should have been afforded, pursuant to her oral motion, at least one opportunity to amend or supplement the affidavit.

Liberal treatment is the rule — and should not be the exception — under these circumstances, particularly where the petitioner is not given the benefit of the reasons for the rejection of the affidavit in the trial court’s order and an appeal thereon could not be predicated with certainty nor any opportunity to correct deficiencies in the affidavit.

The very nature of the factual situation ; viz., absence of eyewitnesses to the accident and the death of Petitioner’s husband the rider of the motorcycle, in the accident, gave rise to conditions where competent expert testimony based on the circumstances might have been relevant evidence at trial. Great caution should be exercised in any

summary judgment proceedings not to deny a litigant ample opportunity to demonstrate that he is entitled to the benefit of a trial. The judgment of the District Court is quashed and the cause remanded for further proceedings not inconsistent herewith. ROBERTS, THORNAL, ERVIN and HOPPING, JJ., concur. DREW, J., concurs specially with Opinion. CALDWELL, C. J., and THOMAS, J., dissent.