Florida East Coast Ry. Co. v. Rouse, 64-990
| Decision Date | 12 October 1965 |
| Docket Number | No. 64-990,64-990 |
| Parties | FLORIDA EAST COAST RAILWAY COMPANY, a Florida corporation, Appellant, v. Ruby ROUSE, Appellee. |
| Court | Florida District Court of Appeals |
Bolles, Goodwin & Ryskamp, Miami, for appellant.
Nichols, Gaither, Beckham, Colson & Spence and Alan R. Schwartz, Miami, for appellee.
Before HENDRY, C. J., and TILLMAN PEARSON and CARROLL, JJ.
This is an appeal by the defendant railroad company from a final judgment in favor of the plaintiff in a personal injury action.
At the outset, we shall discuss the recent case of Georgia Southern & Florida Ry. Co. v. Seven-Up Bot. Co., Fla.1965, 175 So.2d 39, decided by the Florida Supreme Court subsequent to the entry of the final judgment herein appealed, and determine what effect, if any, it has upon the case sub judice.
The Seven-Up case held that Sec. 768.06, Fla.Stat., F.S.A. (comparative negligence statute) is now unconstitutional. The instant case was submitted to the jury under instructions in accordance with Sec. 768.06, supra.
We recognize the general and Florida rule to be that 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 according to the law prevailing at the time of rendition of the judgment appealed. Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965); Yates v. St. Johns Beach Development Co., 122 Fla. 141, 165 So. 384 (1935); Winter Park Golf Estates v. City of Winter Park, 114 Fla. 350, 153 So. 842 (1934); Ben Hur Life Ass'n v. Dunaway, 113 Fla. 252, 151 So. 391 (1933). See also annot. 111 A.L.R. 1317, et seq.
However, the constitutional attack herein pursued, appears for the first time on appeal. The appellant failed in the trial court to assail the statute on any ground upon which rests the Supreme Court decision in the Seven-Up case. The record on which the case is taken here discloses no contention that the statute is unconstitutional. It is a fundamental principle of law that an appellate court may only consider alleged error which was properly preserved below. See 2 Fla. Jur. Appeals, § 290 and cases therein cited. This principle will also be applied to questions of constitutionality as was aptly stated in Gleason v. Dade County, Fla .App.1965, 174 So.2d 466, 467:
We recognize that an exception to the above rule is that 'fundamental error' may be noticed by an appellate court, even though such error has not been asserted below, see Rule 3.7(i), Florida Appellate Rules, 31 F.S.A. However, the error herein alleged...
To continue reading
Request your trial
-
Atlantic Coast Line R. Co. v. Braz
...was invalid or unconstitutional. This case is therefore governed by the recent decision of this court in Florida East Coast Railway Company v. Rouse, Fla.App.1965, 178 So .2d 882. There the court specifically rejected the 'fundamental error' argument, as advanced herein, and held that since......
-
Florida East Coast Ry. Co. v. Rouse
...the petitioner for writ of certiorari seeks review of the decision of the District Court of Appeal, Third District, reported at 178 So.2d 882, affirming a jury verdict and judgment of Sixteen thousand three hundred thirty three dollars ($16,333.00) for respondent Ruby Rouse, plaintiff in th......
-
Public Health Trust of Dade County v. Valcin
...time of the appellate disposition," State v. Hospital District of Hardee County, 201 So.2d 69 (Fla.1967); Florida East Coast Railway v. Rouse, 178 So.2d 882, 883 (Fla. 3d DCA 1965), quashed on other grounds, 194 So.2d 260 (Fla.1966), we note that no conclusive presumption of valid consent, ......
-
Rouse v. Florida East Coast Ry. Co.
...BARKDULL and HENDRY, JJ. HENDRY, Judge. This case comes to us with a long trial and appellate history. See: Fla. East Coast Railway Company v. Rouse, Fla.App.1965, 178 So.2d 882; Fla. East Coast Railway Company v. Rouse, Fla.1967, 194 So.2d 260. The primary issue which was reviewed in prior......