District Court of Appeal of Florida, Third DistrictMay 21, 1974
293 So. 2d 742 (Fla. Dist. Ct. App. 1974)

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  • Valdez v. Fesler

    …4th, 1973). The instant District Court decision did conflict with Minton v. CNA Insurance, 293 So.2d 742…

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No. 73-1014.

April 16, 1974. Rehearing Denied May 21, 1974. Opinion Vacated, see 337 So.2d 406.

Appeal from the Circuit Court, Dade County, James W. Kehoe, J.

Noriega Bartel and Paul J. Levine, Ronald I. Strauss, Miami, for appellants.

Carey, Dwyer, Austin, Cole Selwood, Miami, for appellees.


The appellants filed an action against the appellees for damages resulting from an automobile accident. The plaintiff Herman E. Minton sought compensatory damages for his personal injuries and property damage to his automobile, alleged to have been proximately caused by the negligent driving by the defendant Carrillo of a motor vehicle owned by the defendant Dade County, his employer. The plaintiff Diane Minton, the wife of Herman Minton, joined in the action, claiming derivative damages. The defendants pleaded contributory negligence of both plaintiffs. Upon trial of the cause before a jury, on issues of negligence and contributory negligence, a verdict was rendered in favor of the defendants. Judgment was entered thereon on June 18, 1973. Plaintiffs' motion for new trial was heard and denied on July 10, 1973, and the plaintiffs appealed from the judgment.

On July 10, 1973, the Supreme Court decided the case of Hoffman v. Jones, Fla. 1973, 280 So.2d 431, in which the doctrine of comparative negligence was adopted. Included in the circumstances in which the Court therein held the opinion in that case shall be applied was the following:

"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 appellants invoked the benefit of Hoffman v. Jones, supra, by an assignment of error, and based thereon have argued in their brief for reversal and new trial on the doctrine of comparative negligence, as being the applicable law controlling on the case now on appeal. In that posture of this case upon appeal, as provided for in the above quoted portion of the opinion in Hoffman v. Jones, supra, the rule of law announced in that decision is applicable. The judgment is reversed and the cause is remanded for new trial on the basis provided for in Hoffman v. Jones, supra. Cf. Florida East Coast Railway Company v. Rouse, Fla. 1967, 194 So.2d 260.

Reversed and remanded for new trial.