Thornton v. Elliott, 43038

• Decision Date: 05 December 1973
• Docket Number: No. 43038,43038
• Citation: 288 So.2d 254
• Parties: Melita Anne THORNTON, etc., et al., Petitioners, v. Timothy Wallis ELLIOTT, etc., et al., Respondents.
• Court: Florida Supreme Court

Page 254

288 So.2d 254

Melita Anne THORNTON, etc., et al., Petitioners, v. Timothy Wallis ELLIOTT, etc., et al., Respondents.

No. 43038.

Supreme Court of Florida.

Dec. 5, 1973.

Rehearing Denied Feb. 6, 1974.

William E. Blyler of Patterson, Maloney & Shankweiler, Fort Lauderdale, for petitioners.

Dieter K. Gunther of Carey, Dwyer, Austin, Cole & Selwood, Miami, for respondents.

ERVIN, Justice.

The pertinent question to be resolved in this conflict certiorari proceeding on rehearing is whether Petitioner Melita Anne Thornton, the plaintiff below, is entitled under our recent decision in Hoffman v. Jones, Fla., 280 So.2d 431, and other applicable principles of law to a new trial wherein the newly announced doctrine of comparative negligence of Hoffman v. Jones would be applied.

This case differs from the usual conflict certiorari proceeding in that it involves the collateral application of an appellate change of the law in one case (Hoffman v. Jones) to another pending case (the instant case). Compare Florida East Coast Ry. Co. v. Rouse, Fla., 194 So.2d 260.

Under circumstances of the kind indicated, it is implicit in Hoffman v. Jones and Florida East Coast Ry. Co. v. Rouse the usual rules applicable in conflict certiorari cases must yield to allow a determination of the factual situation actually existing in the case considered.

Here, it appears from a review of the case that Petitioner Melita Anne Thornton sued Timothy Wallis Elliott, Respondent, for personal injury. The evidence showed Melita, then six years old, riding her bicycle, was crossing two public streets at an intersection. There were no obstructions to view. Melita's witnesses testified she tried to extricate herself from her predicament--that is of being struck by Elliott's automobile. Elliott testified he never saw her prior to impact. Melita's counsel sought at trial a last clear chance instruction which was denied. Instead, the trial court merely charged the jury upon the prohibition against comparative negligence. On appeal the District Court of Appeal, Fourth District, affirmed per curiam, citing Falnes v. Kaplan, Fla.1958, 101 So.2d 377, 379. Falnes holds that a last clear chance instruction may or may not be granted, depending on the particular facts. See Hodell v. Snyder, Fla.App.3d, 122 So.2d 36, which appears on all fours with the instant case.

In petition for rehearing in this case which we granted Petitioner, it appears that the Fourth District Court rendered Jones v. Hoffman, Fla.App., 272 So.2d 529, while the instant case was pending and the District Court certified its Jones v. Hoffman decision to this Court.

The trial jury in this case during its deliberations returned to the Courtroom to ask the judge: 'If one party is more negligent than the other, what is the law?' He responded by recharging that comparative negligence was prohibited. It is in this context Petitioner claims the right of a new trial with the doctrine of comparative negligence made applicable. This, of course, is the salient issue here.

In Hoffman v. Jones, supra, we expressly provided that:

'3. As to those cases in which trial has already begun or in which verdict or judgment has already been rendered, this opinion shall not be applicable, unless the applicability of the comparative negligence rule was appropriately and properly raised during some stage of the litigation.

'4. As to those cases on appeal in which the applicability of the comparative negligence rule has been properly and appropriately made a question of appellate review, this opinion shall be applicable.'

The jury in this case in expressly posing to the trial...