Opinion
No. 36278.
November 15, 1967. Rehearing Denied December 13, 1967.
Writ of Certiorari to the District Court of Appeal, First District. 194 So.2d 44.
Victor E. Raymos, Blalock Holbrook, Lewis, Paul Bennett, Jacksonville, for petitioners.
Howell, Kirby, Montgomery, Sands D'Aiuto and Borden R. Hallowes, Jacksonville, for respondent.
The petition for writ of certiorari reflected probable jurisdiction in this Court. After argument and upon further consideration, we have determined the writ was improvidently issued. The writ must be and is discharged and the petition is dismissed.
It is so ordered.
CALDWELL, C.J., and DREW and THORNAL, JJ., concur.
WHITE, Circuit Judge (Retired), concurs specially with Opinion.
ERVIN, J., concurs with WHITE, Circuit Judge (Retired).
I disagree with the statement of the District Court of Appeal regarding the application of the "Last Clear Chance" doctrine, Barnard v. Crews, Fla.App. 1967, 194 So.2d 44, however, I can find nothing in the record indicating that petitioner, plaintiff in the trial court, presented instructions upon the subject to the trial judge, and, in addition, only a portion of the testimony taken during the trial has been brought here, making it impossible to determine whether or not the doctrine was applicable.
ERVIN, J., concurs.