FLORIDA EAST COAST RAILWAY COMPANY, A FLORIDA CORPORATION, APPELLANT,
v.
RUBY ROUSE, APPELLEE
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Florida East Coast Railway Company appealed a personal injury judgment in favor of Ruby Rouse. The appellate court affirmed the judgment, rejecting the railroad's constitutional challenge to the comparative negligence statute because the issue was not properly preserved at trial and the railroad had itself requested the comparative negligence instruction.
The appellate court affirmed the judgment because the railroad failed to preserve the constitutional challenge at the trial court level and therefore could not raise it for the first time on appeal. Additionally, the railroad could not complain of error for which it was responsible, as it had itself requested the comparative negligence instruction.
“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”
Establishes the general rule that current law governs appellate review, though subject to exceptions.
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Join FLexlaw to unlock all legal intelligenceRuby Rouse brought a personal injury action against Florida East Coast Railway Company. The case was submitted to the jury with instructions based on …
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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 judg= *884ment 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:
“The record does not reflect that the question of constitutionality was at issue before the trial court; or that this matter was properly presented to, or ruled upon, by the trial court. We therefore cannot consider this matter for the first time upon appeal. (Citations omitted.)”
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 does not fall within that classification. Moreover, still another postulate of law precludes appellant from assailing the judgment appealed on the basis of the unconstitutionality Sec. 768.06, supra. That is, that a party can not successfully complain of error for which he is responsible. In the case sub judice appellant requested the instruction on comparative negligence and it was appellant s requested instruction thereon which was ultimately given to the jury, see Karl v. David Ritter Sportservice, Inc., Fla.App.1964, 164 So.2d 23.
Turning to appellant’s points properly raised on appeal, it is our conclusion that the verdict is amply supported by the evidence and we find no reversible error. The judgment appealed is therefore affirmed.
Affirmed.
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Fla. E. Coast Ry. Co. v. Rouse, 194 So. 2d 260 (Fla. 1966)…CALDWELL, Justice. Showing conflict jurisdiction, 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 the trial court, against the petitioner-defendant, Florida East Coast Railway Company. The respondent,…
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Pub. Health Tr. OF Dade Cnty. v. Gregoria Valcin, 507 So. 2d 596 (Fla. 1987)…in reviewing a judgment on direct appeal, will dispose of the case according to the law prevailing at the 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, rebuttable only upon a showing of fraud, will apply to the case. The alleged oral warranties, of course, if accept…
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Atl. Coast Line R.R. Co. & Seaboard Air Line R.R. Co. v. Braz, 182 So. 2d 491 (Fla. 3d DCA 1966)…assignments of error on appeal did not assert that the comparative negligence statute 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 the constitutionality of the statute was not properly before the trial court, it could not be raised for the first time on appeal and th…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Linkletter v. Walker, 381 U.S. 618 (U.S. 1965)
- Ga. S. & Fla. Ry. Co. v. Seven-Up Bottling Co. OF Se. Ga., Inc., 175 So. 2d 39 (Fla. 1965)
- Winter Park Golf Ests., Inc. v. City of Winter Park, 114 Fla. 350 (Fla. 1934)
- Frieda Karl and John Karl v. Ritter, 164 So. 2d 23 (Fla. 3d DCA 1964)
- Yates v. St. Johns Beach Dev. Co., 122 Fla. 141 (Fla. 1935)
- Am. Perfit Crystal Corp. v. Metro. Dade Cnty., 174 So. 2d 466 (Fla. 3d DCA 1965)
- Gleason v. Dade Cnty., 174 So. 2d 466 (Fla. 3d DCA 1965)
- State v. Dunaway, 113 Fla. 252 (Fla. 1933)
- Bank of Ocoee v. Mrs. G. R. Sligh, 113 Fla. 120 (Fla. 1933)