Bonded Transportation, Inc. v. Lee

336 So. 2d 1132, 1976 Fla. LEXIS 4475

• Court: Supreme Court of Florida
• Decided: July 8, 1976
• Docket: No. 47066
• Status: Published

Opinion

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. City of Pensacola, 297 So.2d 107 (Fla.App. 1st, 1974), held the issue of comparative negligence to have been properly made a question for appellate review where it was raised for the first time in appellate briefs. CNA Insurance v. Minton, supra, dictates the opposite result:

“The rule could not have been properly or appropriately made a question of review unless the applicability of the rule had been raised at the trial level before or during the trial thereof.” Id. at 258.

Likewise, initial argument for application of comparative negligence on motion for new trial, as the parties here allege occurred, will not support application of the rule.

The decision of the First District is quashed, and the cause is remanded for proceedings consistent herewith. Fitzsim-mons v. City of Pensacola, supra, is disapproved insofar as it conflicts with our decisions herein.

It is so ordered.

ROBERTS, ADKINS, ENGLAND, SUNDBERG and HATCHETT, JJ., concur. BOYD, J., dissents.

1 . Fla.Const. Art. V, § 3(b)(3) (1972).