EBBIN A. LEE AND JOYCE JACQUELYN LEE, HUSBAND AND WIFE, APPELLANTS,
v.
LOUISVILLE & NASHVILLE RAILROAD COMPANY, A RAILROAD CORPORATION, AND BONDED TRANSPORTATION, INC., A CORPORATION, APPELLEES
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Appellants appealed a wrongful death judgment rendered under the old contributory negligence rule, raising for the first time on appeal whether the new comparative negligence rule adopted in Hoffman v. Jones should apply. The court held that an appellate court reviews cases under the law prevailing at the time of appellate disposition, and that raising comparative negligence in the appellate brief constitutes proper and appropriate presentation of the issue under Hoffman's savings provision.
An appellate court reviews judgments according to the law prevailing at the time of appellate disposition, not at the time the judgment was rendered. Raising the comparative negligence issue in appellate briefs constitutes 'properly and appropriately' raising it within Hoffman's savings provision, thus rendering the new comparative negligence rule applicable.
[1] The applicability of the comparative negligence rule may be raised for the first time by brief on appeal.
[2] An appellate court will dispose of a case according to the law prevailing at the time of the appellate disposition, not the law prevailing at the time the judgment was re…
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“An appellate court, in reviewing a judgment on direct appeal, will dispose of the case according to the law prevailing at the time of the appellate disposition, and not that prevailing at the time the judgment is rendered”
Establishes the fundamental principle that appellate review applies current law, not law at time of judgment
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Join FLexlaw to unlock all legal intelligenceOn February 7, 1970, plaintiffs' minor son was killed in an accident. Plaintiffs filed a wrongful death suit on February 4, 1972. A jury trial conclud…
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MILLS, Judge.
Appellants, plaintiffs below, appeal from a judgment in appellee’s favor in a wrongful death action.
The question raised by this appeal is whether the applicability of the comparative negligence rule may be raised for the first time by brief on appeal.
On 7 February 1970, plaintiffs’ minor son was killed in an accident. The wrongful death suit was commenced on 4 February 1972. The jury trial was concluded on 31 January 1973 by a verdict in favor of defendant, appellee here. Judgment was rendered for defendant on that date. The trial court submitted the issue of contributory negligence to the jury. On 9 February 1973, plaintiffs filed a motion for new trial which was denied by order filed on 17 August 1973.
On 10 July 1973, the Supreme Court of Florida rendered and filed its opinion in Hoffman v. Jones, 280 So. 2d 431, in which it replaced the rule of contributory negligence with comparative negligence.
On 31 August 1973, plaintiffs filed their notice of appeal. Assignments of error were timely filed thereafter but did not raise the applicability of the comparative negligence rule. On 28 October 1974, plaintiffs filed their main brief and for the first time raised the comparative negligence rule.
Based on this court’s decision in Fitzsimmons v. City of Pensacola, 297 So. 2d 107 (Fla.App.1974), in which the factual situation was similar to that in the case sub judice, the question raised by this appeal must be answered affirmatively.
An appellate court, in reviewing a judgment on direct appeal, will dispose of the case according to the law prevailing at the time of the appellate disposition, and not that prevailing at the time the judgment is rendered (Florida East Coast Railway Company v. Rouse, 194 So. 2d 260, Fla. 1967).
Accordingly, here, as was stated in Fitz-simmons :
“ . . . it appears that the savings provision in Hoffman to the effect that the comparative negligence rule would be applicable if ‘appropriately and properly raised during some state of the litigation’ applies to that stage of the litigation involving the appellant process. Further, it would appear that the appellants, by raising the applicability of Hoffman in their briefs have ‘properly and appropriately made [comparative negligence] a question of appellate review,’ thus rendering the opinion applicable under the fourth numbered savings provision as set forth in Hoffman.”
For the reasons set forth above, the judgment in the above case is reversed and remanded for a new trial.
BOYER, Acting C. J., and McCORD, J., concur.
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Bonded Transp., Inc. v. Ebbin A. LEE and Joyce Jacquelyn Lee, 336 So. 2d 1132 (Fla. 1976)…OVERTON, Chief Justice. This is before us on petition for writ of certiorari to the First District Court of Appeal from its decision reported at 308 So. 2d 157 (Fla.App. 1st, 1975). That decision conflicts with Hoffman v. Jones, 280 So. 2d 431 (Fla.1973), and CNA Insurance v. Minton, 334 So. 2d 257 (Fla.1976). We have jurisdiction.1 The First District, relying on its previous decision in Fitzsimmons v. Ci…
Authorities Cited
- Hoffman v. Jones, 280 So. 2d 431 (Fla. 1973)
- Fla. E. Coast Ry. Co. v. Rouse, 194 So. 2d 260 (Fla. 1966)
- Fitzsimmons v. City OF Pensacola, 297 So. 2d 107 (Fla. 1st DCA 1974)