Hartley v. Florida East Coast Railway Company

339 So. 2d 630 (1976)

William C. HARTLEY, Petitioner,
v.
FLORIDA EAST COAST RAILWAY COMPANY, Respondent.

No. 46314.

Supreme Court of Florida.

October 28, 1976. Rehearing Denied December 16, 1976.

H.C. Feige, of Patterson, Maloney & Shankweiler, Fort Lauderdale, for petitioner.

Kenneth L. Ryskamp, of Bolles, Goodwin, Ryskamp & Welcher, Miami, for respondent.

OVERTON, Chief Justice.

This is a petition for writ of certiorari to review a decision of the Fourth District Court of Appeal reported at 299 So. 2d 108. The decision conflicts with Fitzsimmons v. City of Pensacola, 297 So. 2d 107 (Fla.App. 1st 1974). We have jurisdiction.^[1]

In the instant case, the Fourth District held the initial assertion of the doctrine of comparative negligence in plaintiff's appellate brief was not sufficient to allow a new trial upon the new doctrine. The District Court concluded that this action did not constitute raising the issue during some stage of the litigation, nor properly making it a question for appellate review, citing Hoffman v. Jones, 280 So. 2d 431 (Fla. 1973). We agree.

Our recent decision in CNA Insurance v. Minton, 334 So. 2d 257 (Fla. 1976), is controlling. We disapprove the holding on this point in Fitzsimmons v. City of Pensacola, supra.

The opinion of the District Court is approved and the writ is discharged.

It is so ordered.

ADKINS, BOYD, ENGLAND and SUNDBERG, JJ., concur.

NOTES

[1] Fla. Const., Art. V, § 3(b)(3).