Hoffman v. Jones

Decision Date10 July 1973
Docket NumberNo. 43443,A-W,43443
Citation280 So.2d 431,78 A.L.R.3d 321
PartiesPhilip Francis HOFFMAN, Jr., and Pav-ay Corporation, a Florida corporation, Petitioners, v. Hazel J. JONES, as Administratrix of the Estate of William Harrison Jones, Jr., Deceased, Respondent.
CourtFlorida Supreme Court

Edna L. Caruso of Howell, Kirby, Montgomery, D'Aiuto, Dean & Hallowes, West Palm Beach, for petitioners.

Sammy Cacciatore of Nance & Cacciatore, Melbourne, for respondent.

E. Harper Field and Frank C. Amatea of Keen, O'Kelley & Spitz, Tallahassee, for amicus curiae, Fla. Defense Lawyers Ass'n.

C. Graham Carothers and C. DuBose Ausley of Ausley, Ausley, McMullen, McGehee & Carothers, Tallahassee, for amicus curiae, Fla. Railroad Ass'n.

Kenneth L. Ryskamp, of Bolles, Goodwin, Ryskamp & Welcher, Miami, for amicus curiae, Fla. East Coast Railway Co.

William B. Killian, of McCarthy, Steel, Hector & Davis, Miami, for amicus curiae, Fla. Power & Light Co.

Sam H. Mann, Jr. and John T. Allen, Jr., of Harrison, Greene, Mann, Davenport, Rowe & Stanton, St. Petersburg, for amicus curiae, Fla. Power Corp.

Raymond Ehrlich and James E. Cobb, Jacksonville, for amicus curiae, American Mutual Ins. Alliance, American Ins. Asso., and National Asso. of Independent Insurers.

Thomas W. McAliley of Beckham & McAliley, Miami, for amicus curiae, United Transportation Union, Fla. Legislative Boards of Railroad Brotherhoods and the Fla. AFL-CIO.

ADKINS, Justice.

This cause is here on petition for writ of certiorari supported by certificate of the District Court of Appeal, Fourth District, that its decision (Jones v. Hoffman, 272 So.2d 529) is one which involves a question of great public interest. See Fla.Const., art. V, § 3(b)(3), F.S.A.

The question certified by the District Court of Appeal is:

'Whether or not the Court should replace the contributory negligence rule with the principles of comparative negligence?'

The District Court of Appeal answered the certified question in the affirmative and reversed the trial court in the case Sub judice for following the precedent set down by this Court in Louisville and Nashville Railroad Co. v. Yniestra, 21 Fla. 700 (1886). This early case specifically held the contributory negligence rule to be the law of Florida, and it has uniformly been followed by the courts of the State ever since. The District Court of Appeal attempted, therefore, to overrule all precedent of this Court in the area of contributory negligence and to establish comparative negligence as the proper test. In so doing, the District Court has exceeded its authority.

In a dissenting opinion, Judge Owen stated well the position of the District Courts of Appeal when in disagreement with controlling precedent set down by this Court:

'(I)f and when such a change is to be wrought by the judiciary, it should be at the hands of the Supreme Court rather than the District Court of Appeal. . . . The majority decision would appear to flatly overrule a multitude of prior decisions of our Supreme Court, a prerogative which we do not enjoy.' Jones v. Hoffman, 272 So.2d 529, p. 534.

The other District Courts of Appeal have recognized the relationship between their authority and that of this Court. Griffin v. State, 202 So.2d 602 (Fla.App.1st, 1967); Roberts v. State, 199 So.2d 340 (Fla.App.2d, 1967); and United States v. State, 179 So.2d 890 (Fla.App.3d, 1965). To allow a District Court of Appeal to overrule controlling precedent of this Court would be to create chaos and uncertainty in the judicial forum, particularly at the trial level. Ever since the District Court rendered its opinion there has been great confusion and much delay in the trial courts of the District Court of Appeal, Fourth District, while the attorneys and judges alike have been awaiting our decision in this case.

We point out that the mere certification to this Court by a District Court of Appeal that its decision involves a question of great public interest does not vest this Court with jurisdiction. If neither party involved petitioned here for a writ of certiorari, we would not have jurisdiction to answer the question certified or to review the District Court's action.

This is not to say that the District Courts of Appeal are powerless to seek change; they are free to certify questions of great public interest to this Court for consideration, and even to state their reasons for advocating change. They are, however, bound to follow the case law set forth by this Court.

Prior to answering the question certified, we must also consider our own power and authority to replace the rule of contributory negligence with that of comparative negligence. It has been suggested that such a change in the common law of Florida is properly within the province only of the Legislature, and not of the courts. We cannot agree.

The rule that contributory negligence is an absolute bar to recovery was--as most tort law--a judicial creation, and it was specifically judicially adopted in Florida in Louisville and Nashville Railroad Co. v. Yniestra, Supra. Most scholars attribute the origin of this rule to the English case of Butterfield v. Forrester, 11 East 60, 103 Eng.Rep. 926 (K.B.1809), although as much as thirty years later--in Raisin v. Mitchell, 9 Car. & P. 613, 173 Eng.Rep. 979 (C.P.1839)--contributory negligence was held not to be a complete bar to recovery. Maloney, From Contributory to Comparative Negligence: A Needed Law Reform, 11 U.Fla.L.Rev. 135, 141--142 (1958). Although 'contributory negligence' itself had been mentioned in some earlier cases, our research reveals that prior to 1809 (as well as for a time after that date) there was no clear-cut, common law rule that contributory negligence was a complete defense to an action based on negligence. Most probably, the common law was the same in this regard as English maritime law and the civil law--i.e., damages were apportioned when both plaintiff and defendant were at fault. See Maloney, Supra, page 152. Many authorities declare that early references to 'contributory negligence' did not concern contributory negligence as we are familiar with it--i.e., lack of due care by the plaintiff which contributes to his injuries--but that it originally meant a plaintiff's own negligent act which was the effective, Direct cause of the accident in which he was injured. E.G., Turk, Comparative Negligence on the March, 28 Chi-Kent L.Rev. 189, p. 196 (1950).

Prior to Butterfield v. Forrester, Supra, there was no clear-cut pronouncement of the contributory negligence rule, so it must be said that 'judicial thinking' culminated in the implicit pronouncement of the contributory negligence rule in the 1809 decision of Butterfield v. Forrester, Supra. In view of the fact that prior to Butterfield contributory negligence was a matter of judicial thought rather than judicial pronouncement, it cannot be said that the common law was 'clear and free from doubt,' so as to make it a part of the statute law of this State by virtue of Fla.Stat., § 2.01, F.S.A.

As we stated in Duval v. Thomas, 114 So.2d 791, 795 (Fla.1959), it is 'only when the common law is plain that we must observe it.' We also said in this case,

'(W)hen grave doubt exists of a true common law doctrine . . . we may, as was written in Ripley v. Ewell, supra, (61 So.2d 420), exercise a 'broad discretion' taking 'into account the changes in our social and economic customs and present day conceptions of right and justice.''

Even if it be said that the present bar of contributory negligence is a part of our common law by virtue of prior judicial decision, it is also true from Duval that this Court may change the rule where great social upheaval dictates. It has been modified in many instances by judicial decision, such as those establishing the doctrines of 'last clear chance,' 'appreciable degree' and others. See Negligence: Application of the Last Clear Chance Doctrine by Kenneth M. Myers, 8 Fla.Law.Rev. 336 (1955). In a large measure the rule has been transfigured from any 'statutory creation' by virtue of our adoption of the common law (if such it were) into decisional law by virtue of various court refinements. We have in the past, with hesitation, modified the common law in justified instances, and this is as it should be. Randolph v. Randolph, 146 Fla. 491, 1 So.2d 480 (1941), modified the common law doctrine that gave a father the superior right to the custody of a child; Banfield v. Addington, 104 Fla. 661, 140 So. 893 (1932), removed the common law exemption of a married woman from causes of action based on contract or mixed contracts in tort.

In Waller v. First Savings & Trust Co., 103 Fla. 1025, 138 So. 780 (1931), this Court refused to follow the common law principle that an action for personal injuries was abated upon the death of the tort-feasor, the Court saying:

'This court has expressly recognized the principle that in specific instances certain rules which were admittedly a part of the old English common law did not become a part of the Florida common law, because contrary to our customs, institutions, or intendments of our statutes on other subjects.' (p. 784)

This Court receded from the common law and held, in Hargrove v. Town of Cocoa Beach, 96 So.2d 130 (Fla.1957), that a municipal corporation may be held liable for the torts of police officers under the doctrine of Respondeat superior, saying:

'Tracing the rule to its ultimate progeniotr we are led to the English case of Russel v. Men of Devon, 2 T.R. 667, 100 Eng.Rep.R. 359 (1788).

'Assuming that the immunity rule had its inception in the Men of Devon case, and most legal historians agree that it did, it should be noted that this case was decided in 1788, some twelve years after our Declaration of Independence. Be that as it may, our own feeling is that The courts should be alive to the demands of justice. We can see no necessity for insisting on legislative action in a matter which the courts themselves...

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